A sociedade em conta de participação no direito de empresa do código civil de 2002

by da Costa, José Maria

Abstract (Summary)
Truogh the Law Nr. 10.406, of 10.01.2002, merged in our country a new Civil Code,to substitute the Beviláqua Code, effective since the second decade of last century (Law Nr.3.071, of 01.01.1916). Besides deep modifications in the field of the civil law, the new Codeunified, in same treatment, the civil and mercantile obligations, extinguished the distinctionbetween civil and trade societies and created the entrepreneur societies.Immense difficulties, however, are set in delimiting the extension and effects of thatjunction between civil and commercial laws, mainly when is seen that, in the dawning of thenew legislation, the civilists are self-neglecting the treatment of the enterprise law inserted inthe Code, as if one just have added oil to water in same recipient, but such liquids continuenot blending.However, having the mentioned junction of matters the authority of put right, adeeper reflection is necessary for the exegesis and application of the new legal system, so thatthere is not a commercialization of the civil law, or a civilization of the commercial right,both obviously improper. Just as an example, one can see that, on one side, the new Codegave to its devices a more open composition to make possible a more useful work of thejudges. The commercial right, however, on its side, requests clear norms and firm rules. In apanorama as that, the application of principles as sociability and operationability in the fieldof the commercial right can generate insecurity, with social costs perhaps larger than thebenefits that can be produced from the innovations.Even with the unified treatment, it is necessary to exist an peculiar hermeneutics ofthe commercial fact, different from that one that interprets the facts of civil nature, mainlywhen one treats the good-faith to be considered in the juridical businesses of mercantilenature, with its differences relative to the good-faith that governs the businesses among nonmerchants(CC, art. 113); it is necessary to consider in what extension must be applied, in thefield of the commercial right, the principle of the freedom of negotiation, that is exercisedwithin the limits of the social function of the contract (CC, art. 421); one must check how willincise, in the sphere of the commercial law, the new institute of lesion (CC, art. 157), thatmakes possible the annulment of a business by inexperience, above all in a field that theinexperience is part of the game.For that reflection of how the institutes and the societies of the ancient CommercialCode of 1850 come for the Civil Code of 2002, besides the own brought innovations, the mostpeculiar of all the societies was chosen - the participation bill - with its innovations anddifferences in relation to the previous ordering.An deductive feature analysis started from the historical notions of the trade and theevolution of the commercial law, went by the considerations on the Civil Code of 2002,stopped in the subject of the unification and in the principal aspects of interpretation of thenew enterprise law, and analyzed how the societies were brought for the new ordering, andtreated the society in participation bill, not with intention of exhausting the matter, but aboveall with the concern of enhancing the aspects of larger relief for the present time and ofposting it as a center around which other discussions gravitates on generic aspects of largerrelief.With those considerations, it is believed firmly that this study can contribute tostimulate and serve as a beginning of other works that attempt to place and to discuss, withthe whole property, vastness and reflexes, the unification that took place in the obligationmatter in the civilian and commercial fields, and of the own corporation law, starting from thespecific analysis of that so agile, current, useful and sui generis society modality - theparticipation bill
This document abstract is also available in Portuguese.
Bibliographical Information:

Advisor:Teresa Celina Arruda Alvim Wambier

School:Pontifícia Universidade Católica de São Paulo

School Location:Brazil

Source Type:Master's Thesis

Keywords:Civil Code Participation bill


Date of Publication:11/27/2006

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