Controle externo contratual
AUTOR(ES)
João Henrique Guidugli
DATA DE PUBLICAÇÃO
2005
RESUMO
ABSTRACT Corporate control, in accordance with art. 116 of Law No. 6,404/76, is limited to the controlling stockholder. We believe that there is a mistake regarding this legal option, even in case the role of corporate law is focused only on the protection of minority stockholders. The situation becomes more serious, as the Brazilian legal system contains a series of scattered regulations that render agents liable whenever certain influences, integrations or dependencies, each of which applicable to one segment of law, are proven in connection with one legal entity, which entails uncertainty to those in control and to those seeking remedy against eventual abuses. This paper addresses the various types of external control, from the legal control, as imposed by public authorities, to situations of dominant influence, caused by agents that maintain corporate or contract relationships with the company. Special attention is given to the contract external control, inasmuch as it is the most common type of external control, with deep impacts in the Brazilian economy. Moreover, the individual that controls a company based on contracts represents, as a general rule, a distinct center of interests, opposed to the controlled company, which is a source of conflicts and abuse of power. Taking into account the identification of the main aspects referring to alignment of activities, returns of investments and restrictions imposed to the controlled company, this paper offers an analysis on the interests and motivations that are present in the several types of contract external control, including the liability of those in control. In the same manner Law No. 6,404/76 represented an improvement vis-à-vis Decree-Law No. 2,627/40, which failed to recognize the controlling stockholder, we understand that the growing complexity and sophistication of the relationships among the various economic agents on the last decades would justify the recognition of the external control on the Brazilian corporate law, not only to address the interests of the minority stockholders, but also to enable the corporate law to fulfil its main goal: the fostering of the social function of the firm as an economic agent, producer of goods, services, employment and taxes.
ASSUNTO(S)
poder de controle direito comercial sociedade anonima sociedades corporation acionistas corporate control
