O denominado controle externo nas sociedades anônimas e o parâmetro de responsabilidade de seu titular

Abstract

This master's thesis aims to investigate the parameter and mechanisms of civil liability applicable to the external agents who have determinant influence in public companies. Considering that these external agents, often referred to as "external controllers" hold the ability to ultimately define the content of social will regarding various relevant transactions and decisions, imposing the performance or abstention of actions by the companies, it is relevant to discuss ways to make them accountable for their actions. For such purpose we analyze the concepts of corporate control and external control, presenting the most common scenarios where external control is observed in practice. We then propose a distinction between the interventions of these external agents regarding matters inherently linked to the core object of the underlying relationship with the company and interventions in typical control decision that exceed the core object of the underlying relationship. Furthermore, we also distinguish between interferences related to typical control matters and interferences limited to issues of the everyday management of certain social activities that are not typical of control. Moving forward, we discuss the accountability mechanisms currently in place, including ordinary general rules of civil liability within the Civil Code and the theories supporting the analogy application of rules applicable to controlling shareholders under the Law of Publicly-Held Companies. Finally, based on the conclusions from the previous analysis, we present our proposed approach to the issue, involving a presumption of guilt regime that would apply, in certain cases, to the actions of external agents.