A modulação das hipóteses de responsabilização do administrador por violação ao dever de diligência

• Autor(a) principal: Lopes, Pedro Pereira
• Data de Publicação: 2019
• Tipo de documento: Dissertação
• Idioma: por
• Título da fonte: Biblioteca Digital de Teses e Dissertações da UERJ
• Texto Completo: http://www.bdtd.uerj.br/handle/1/9470
• topic: Corporate law; Directors' liability; Duty of diligence; Contractual modulation; Direito societário; Responsabilidade do administrador; Dever de diligência; Modulação contratual; CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO

The Brazilian legal system establishes that managers must employ, in the exercise of their functions, the care and diligence that every active man usually employs in the administration of their own businesses. The prevision is contained in articles 1.011 of the Civil Code and 153 of Law n. 6,404 of December 15, 1976. These norms, of subjective content, represent standards of conduct, that must be interpreted casuistically. Although essential, because it would be impossible to establish standardized duties of conduct, casuistry could generate legal uncertainty, discouraging the participation of qualified professionals. As a legal protection instrument, the Brazilian legal system allows for the contracting of directors and officers liability insurance (D&O). It also allows companies and managers to set up hold harmless agreements, whereby organizations guarantee the payment of expenses incurred by their managers related to cases in which they are involved as a result of acts performed in the exercise of their duties. Another option to give more predictability and hence legal certainty to managers would be to enable organizations to modulate (expand, restrict or eliminate) the hypothesis of liability for breach of due diligence, as authorized, mutatis mutandis, by chapter 18, paragraph 1,101, letter "c", of the Delaware Limited Liability Company Act. But to what extent would Brazilian legal system allow this type of contract? Here is the issue that this dissertation intends to investigate. The dissertation analyzes the main institutes related to the theme, pertinent legislation, practical occurrence of the problem, nature and characteristics of the institutes. The dissertation will also adopt the hypothetical-deductive method of research, by analyzing the norms foreseen in the legal order in relation to the duties of care and diligence, without prejudice to the functional interpretation of the institute and its application by Brazilian and American doctrine and jurisprudence.