Post by xyz3400 on Feb 20, 2024 8:00:58 GMT 1
The Labor Court may consider the partners of a company as defendants in legal actions starting from the initial petition, if the company does not have assets to pay off the debts. The decision is from the 4th Chamber of the Regional Labor Court of the 12th Region (TRT-12) which, by majority, admitted the application of disregard of the legal personality without the need to open a procedural incident, in an action involving an administrative assistant from Blumenau ( SC). Normally, the inclusion of partners and former partners of companies as defendants is done after the lawsuits are judged, in cases where there is a conviction. If the company does not have cash or assets that can be seized to pay off the debt, the creditor can ask the judge to initiate an incident, so that the execution also falls on the owners' assets.
The procedure became mandatory in the Labor Court after Law 13,467/17 (labor reform) came into force. In the case of the worker from Blumenau, the request was presented in the initial petition, under the allegation that the company had already closed its activities and did not have the assets to pay off the debt estimated at R$25,000. The request was initially denied by the first instance judge. Despite Honduras Mobile Number List ordering the company to pay the debt, the judge interpreted that the owner's liability would have to happen later, during the course of the action. “Only in the enforcement phase, given the economic insufficiency of the legal entity defendant, will the assets of its partners be affected,” she claimed. The employee appealed to TRT-12.
The rapporteur, judge Gracio Petrone, stated that, although article 50 of the Civil Code conditions the opening of the incident to the existence of evidence of abuse of legal personality, labor doctrine and jurisprudence have been adopting a less rigorous position in relation to the issue. “In this sense, for the partner’s assets to be responsible for the company’s debts, it is enough that the company does not have assets for the execution to begin, and it is essential to prove that the partners’ acts were carried out with abuse of power”, said Petrone, highlighting that the employee would hardly be able to prove an attempt to hide the company's assets. Given the situation of economic insufficiency of the employees, stated the judge, "the incident is fully applicable only upon the finding that the legal entity no longer has sufficient assets to resolve the execution". The understanding was followed by the majority of members of the Chamber.
The procedure became mandatory in the Labor Court after Law 13,467/17 (labor reform) came into force. In the case of the worker from Blumenau, the request was presented in the initial petition, under the allegation that the company had already closed its activities and did not have the assets to pay off the debt estimated at R$25,000. The request was initially denied by the first instance judge. Despite Honduras Mobile Number List ordering the company to pay the debt, the judge interpreted that the owner's liability would have to happen later, during the course of the action. “Only in the enforcement phase, given the economic insufficiency of the legal entity defendant, will the assets of its partners be affected,” she claimed. The employee appealed to TRT-12.
The rapporteur, judge Gracio Petrone, stated that, although article 50 of the Civil Code conditions the opening of the incident to the existence of evidence of abuse of legal personality, labor doctrine and jurisprudence have been adopting a less rigorous position in relation to the issue. “In this sense, for the partner’s assets to be responsible for the company’s debts, it is enough that the company does not have assets for the execution to begin, and it is essential to prove that the partners’ acts were carried out with abuse of power”, said Petrone, highlighting that the employee would hardly be able to prove an attempt to hide the company's assets. Given the situation of economic insufficiency of the employees, stated the judge, "the incident is fully applicable only upon the finding that the legal entity no longer has sufficient assets to resolve the execution". The understanding was followed by the majority of members of the Chamber.