masterThesis
Incidência do regime jurídico do código de defesa do consumidor nos fundos de investimento: deveres e responsabilidade do administrador
Fecha
2017-09-29Registro en:
LEITE, Carlos Alexandre Corrêa. Incidência do regime jurídico do código de defesa do consumidor nos fundos de investimento: deveres e responsabilidade do administrador. 2017. 140f. Dissertação (Mestrado em Direito) - Centro de Ciências Sociais Aplicadas, Universidade Federal do Rio Grande do Norte, Natal, 2017.
Autor
Leite, Carlos Alexandre Corrêa
Resumen
This work analyses the investment trusts and the possibility of incidence of consumer
protection rules on the relationship between the settlor and trustee. Initial approach
starts from the concepts of Economic Constitution and Constitutional Economic Order
to position the latter as part of the constitutional system. Brazilian Constitution outlines
the profile of the so-called Regulatory State by reducing its direct role in economic
activity and by the centrality of the notion of regulation. Within this scenario, market
agents must fulfill the constitutional precepts that support the capital market. In
addition, state action to regulate the market, by ordering the business environment, is
done in order to preserve fundamental rights and to pursue the values elected by the
Brazilian constitution. Consumer protection consists in one of these values. So it
becomes possible to harmonize the existence of the market with the satisfaction of the
principles of social justice and solidarity contained in the constitutional norm.
Subsequently, the brief presentation of investment trusts and the discussion on its legal
nature point to the condominium nature in Brazilian law, even though the rules
regarding the condominium contained in the Brazilian Civil Code are not sufficient to
explain and properly regulate the institute. The investment trusts are part of the
Brazilian National Financial System. Brazilian Constitution defined both new
significance and new objectives to the system, although there has been no change in
institutional design. In this context, with the objective of preserving and maximizing the
efficiency of the financial system, the Brazilian Securities and Exchange Commission
exercises real market regulation and partially delimits the relationship between settlor
and trustee in the trusts. Consumer protection is another normative source applicable
to the legal relationship between settlor and trustee. This work recognizes the
possibility of applying the Consumer Protection Law to the relationship between settlor
and trustee, provided that first meets the requirements to be characterized as a
consumer in Brazilian consumer regulation. The existence of a dialogue between the
normative sources of the Brazilian Financial System and Consumer Protection is
admitted. Following the incidence of consumer protection, text aims to outline the
duties and responsibility of the trustee according to consumer protection rules: duty of
loyalty, duty of information and the objective responsibility of the trustee. Research
method consisted in the review of the scientific literature regarding the investment
trusts and the analysis of Brazilian constitutional and federal regulations as well. Court
precedents related to the subject are also brought the discussion.