Responsabilidade civil do administrador de sociedade anônima: parâmetros para aferição da culpa

Abstract

This study was conceived of and developed in a socioeconomic scenario in which scandals involving frauds committed by corporate executives have been, if not frequent, then certainly not rare. Indeed, many of the scandals reached the headlines because they involved large listed companies and as such affected the interests of society as a whole: government, creditors, shareholders and a wide range of other stakeholders. Against this backdrop, the study investigates potential parameters to be used in determining fault on the part of the members of management of corporations, as one of the elements of officers’ and directors’ civil liability. After an overview of the other elements of civil liability, the study examines in more detail the subjective element (fault – culpa – or malice – dolo), particularly under the legislative provisions governing the relationship between members of management and the company they manage. It then looks at the duty of diligence, which is taken to be the key to interpreting the system of officers’ and directors’ civil liability, along with the more specific duties derived from the overarching duty of diligence. With these interpretive tools in hand, the study examines the parameters or criteria that can be used to determine whether an executive’s conduct is at fault, taking into consideration both the applicable theory and the factual circumstances of the case. The study classifies the parameters into standards of conduct and standards of review, and then examines the nuances of each. For the standards of conduct, the study focuses on mechanisms that executives can deploy a priori, before engaging in a given act of management, such as, for example, resolutions adopted on the majority vote of a minority of the members of management or shareholders, and the formation of a special independent committee. As for the standards of review, the study examines the tests (the business judgment rule, the entire fairness test and the enhanced security test) that can be applied a posteriori to determine whether the executive’s conduct has met the expected standards and thus whether, on the facts of the case, there has been a violation of fiduciary duties.