A desconsideração da personalidade jurídica sob a ótica do devido processo legal

Abstract

The purpose of this paper is to analyze the procedural aspects of the use of the institute of disregard of legal personality in Brazilian law, and also to verify if its application is in line with the constitutional rights and guarantees arising directly or indirectly from due process of law. Thus, initially, it has as a paradigm the Democratic State of Law, which requires the conformation of the process to more democratic bases. It then comments on the emergence of the legal entity and its existential and patrimonial autonomy in the legal system. This is done by analyzing the limitation of the responsibility deriving from legal personification, and the context that allowed the emergence of the institute from disregarding the legal personality. The hypothesis of application of this institute in Brazilian law is discussed below. Finally, it presents a proposal of discursive theory of the process, based on the ideas of Jurgen Habermas, to fit the civil process as an instrument of social integration to enable the adequacy of the procedure of disregarding the legal personality to due process in its procedural and material scope. It accomplishes a deep doctrinal analysis, always preoccupied with the empirical plan, by means of a reproduction of the jurisprudence of the Superior Court of Justice referring to the subject matter. It is also important to analyze critically the pioneering incident of disregarding the legal personality introduced by the New Code of Civil Procedure, concluding the insufficiency of the new legislation and the imperative need to change mentality in order to establish a theory that guarantees due process in all aspects, to enable a Democratic Jurisdiction.