Revisão crítico-estruturalista da noção jurídica de empresa predominante no Direito Comercial brasileiro

Abstract

The main propose of this thesis consists in the presentation of a legal notion of firm for the contemporary brazilian Commercial Law, from a critical-structuralist perspective. The central motivation of this research is: the transposition or adaptation of economic lessons and/or the economic based data, separately considered, constitutes an appropriate methodology for the captation of the knowledge about firms, capable to underlie the construction of an adequate legal notion of it, in a contemporary brazilian Commercial Law? In order to analyze this question, it was carried out researches of qualitative nature, based on documental and bibliographical reviews and upon the analyze of content. The research arises from the presentation and inquiry of the current and prevailing legal vision incorporated to the present brazillian reality, existing in the Brazilian Civil Code of 2002 (and based upon the New Commercial Code, in proceeding) and your interpretations, as well as the new concepts, based upon new theoretical perspectives emanating of the doctrine recently presented, as alternatives to the current legal model. It is sustained that these later positions, constitutes, in their majority, new attempts of economic explanations over the firm, working as a base for the construction of its legal meaning. Along the investigation, it was noticed the necessity of the ratification of an idea, widespread on the doctrine? the idea that the firm consists in a complex phenomenon. Althought, it was understood that this complexity does not stem of the large amount of theories that try to explain its nature, in contrast to the usually doctrinaire orientation, but due the fact that the firm does not round off itself barely on the economic aspects. This verification, leads to the following acknowledgments: I) The simultaneous importance and insufficiency of the economic data/elements to uncover the way the firms projects itself into the Law. II) the necessity of rethinking the legal notion of firm, in accord with distinct premises, contextualized with the reality and a determined in time-space (the contemporary brazillian Commercial Law), focused on a wider discussion about the interests that gravitate around the economic activity. As the common thread of these reflections, was adopted as theoretical-methodological reference for the legal structuralism, the studies of Emilio Suñe Llinás and Calixto Salomão Filho. Rethinking the legal notion of firm from this new perspective, implicates in not reducing the understanding of the institute into a purely formal, eminently economic vision, but seeking for wider analysis bases. Supported in those premises, it was made an analysis simultaneously critical (in opposition to the vision based on economic determinisms and the eminently economic function of the firm and the Law) and propositional (by offering bases of an structuralist review of the legal concept of firm). This vision is based on the conception that the Law is an instrument of economic and social change, which projects a peculiar understanding for the Commercial Law, pointing to the break with the traditional view of its strict connection with private interests, and with those who detain the means of production.