A desconsideração da personalidade jurídica: como a introdução do incidente da desconsideração no novo código de processo civil afetará a prática dos tribunais trabalhistas

Abstract

This study sought to trace a historical reasoning for the emergence of the institute of disregard of legal personality, appearing primarily in English jurisprudence and American jurisprudence with the intention of preventing the institute of legal personality from being used to perpetrate fraud against creditors and, in Brazil, the institute is used as a way to ensure that the social function of property is respected. In the second part of the present study, we sought to define the theories that permeate the institute of the disregard of legal personality, these being the greater theory that implies patrimonial confusion, or deviation from the purpose of the legal person, and, the minor theory, that only the mere default of the legal entity would be sufficient to disregard the legal entity. The second theory is one that is used extensively in the labor relationship, and since the incident of disregard of legal personality in the NCPC was implemented, with mandatory compliance with the CLT procedure, it is believed that the minor theory could be threatened in the scope of Labor Law. In order to verify the changes in the labor practice since the insertion of the norm of article 855-A in the CLT, some crowded judges were interviewed in the labor forum of Vitória to answer the question. Finally, in the last chapter, some positive aspects of the legislative change were demonstrated, namely, the greater legal certainty to the employer, the incentive to entrepreneurship resulting from such legislative change.