Brazilian Corporate Law

Brazilian Corporate Law: general

theory; company and entrepreneur;

brands and patents; societies.

Paulo Byron Oliveira Soares Neto1

paulobyron@bol.com.br

author's notes and thanks

This book aims to provide the reader an

insight, a broad and objective manner with regard to

the Corporate Law, exposing the historicity, general

theory, company business, types of business

companies, trademarks and patents in the light of

doctrine and Brazilian legislation.

1effective teacher of the Government of São Paulo State;

Bachelor and Bachelor of Mathematics from the University

Ibirapuera; Specialist in School Management and Educational

Coordination by Uniasselvi; majoring in Law (UNIP); Majoring

in Production Engineering (UNIVESP); After graduating in

philosophy instruction (UNIFESP); Specialist in Tax Law and

Master in Law and International Business from the

Universidad del Atlantico - Spain.

Thus, in writing this book I meant as

much as possible to facilitate the understanding of

some trainers institutes of business law. Obviously

it is up to the reader, if you wish, to deepen their

knowledge in this field of law.

I thank my sons, Caio and Giovanna for

being extremely sympathetic to this father who loves

you!

"Mental wounds still screaming

Driving me insane

I'm going off the rails on a crazy train "

(Ozzy Osbourne)

4

Introduction

The Corporate Law, for a long scholars

also called Commercial Law. Governed by private law

by the Civil Code and other laws and regulations of

public institutions such as the Central Bank of Brazil

(BCB) and the Board of Trade of each State, in the case

of São Paulo, we have the Commercial Along the State

of São Paulo ( JUCESP).

This time, the main laws that guide the

business law are the Civil Code - Law No. 10.406 /

2002, the Law of Corporations - Law 6,404 / 1976, the

Check Law - Law No. 7,357 / 1985 Property Law

industrial - Law No. 9,279 / 1996 and the Recovery Act

in prey and Bankruptcy - Law No. 11,101 / 2005.

Endemann defines the business law as "the

complex rules governing the legal acts of the

commercial traffic."2

2Endemann, G. Manuale di diritto commerciale, marittimo,

Foreign Exchange. Carlo Betocchi translation ed. Alberto Vighi.

Napoli: Jovene, 1897, v. 1, p. 11, free translation "il complesso di

quelle che norme regolano gli atti giuridici del traffico

commerciale."

5

Cesare Vivante points out another

definition for the right business "part of private law,

which has mainly regular object the legal relationships

that arise from the exercise of the trade."3

Paula Forgioni, on business law, says "the

set of legal rules and principles governing the

organization of firms in the market."4

Through the definitions presented in the

exposed doctrines, we define business law as the

complex rules governing the organization and activity

in order to meet the market needs, and their acts

realized from this activity.

Given the above, it is noteworthy that we

must analyze the evolution of business law in the world

and especially in Brazil, presenting the differences and

company and entrepreneur settings as well, have the

reader on types of societies and their characteristics and

also on aspects relevant regarding trademarks and

patents.

3VIVANTE, Cesare. commercial law institutions. Translation J.

Alves de Sa. 3. ed. São Paulo: Library C. Teixeira, 1928, p. 7.

4Forgioni, Paula A. The evolution of the Brazilian

commercial law: the mercancia the market. São Paulo:

Journal of the Courts, 2009, p. 17.

6

1. Brief history

The oldest civilizations longer engaged in

business activities, with the existence of certain

espartas laws governing the activities, eg, Code of

Manu in India and the Code of Hammurabi in Babylon,

but there was still no specific legal system in order to

systematize with rules and principles of business

activities.

In the Middle Ages with the advent of

increased marketing and appearance of new actors,

merchants

(bourgeoisie),

through

the

Craft

Corporations, there is the emergence of the commercial

code, obviously in embryonic scale, regulating trade

relations by legal rules represented by a classist and

private law.

This time, we can divide the right business

into three distinct periods. The foregoing period, where

the disputes were resolved through the legal rules of the

closed class, but without much formality and

customary basis.

The

second

period,

with

direct

participation of Napoleon Bonaparte, characterized by

economic liberalism and the consolidation of the

7

French Commercial Code of 1808. With this happens

the abolition of corporations and establish the freedom

to work and trade, thus the Law commercial becomes

regular acts of commerce, industry and other economic

activities. It is noteworthy the subjective criterion,

since, conceived to trial of persons not traders, but

exercising commercial nature activities.

In the third period, which takes place in

Italy, takes into account the commercial law is not the

activity itself, but the way this is carried out in an

organized and professional manner, in order to produce

or circulate goods or services . From this point, we have

the activity becomes business therefore covered by

corporate law, ie the Italian Civil Code promotes the

formal unification of private law regulating civil and

business relationships.

1.1.Brief history Business Law in Brazil

The Brazilian Commercial Code, Law No.

556 of June 26, 1850, only disciplined professional

activities of traders, therefore, in his text does not

mention acts of trade.

Due to the absence of commercial acts

arranged in the Commercial Code, this was dependent

8

on regulations, including as regards the procedural

issue. In the same year of enactment of the relevant

code, there are regulations, which showed to be of

paramount importance. The Regulation 737, dated

November 25, 1850, defined the commercial matter for

the procedural relationship, in accordance with Article

19.

business

transactions

have

suffered

hardship

and

doctrinal

disagreements

its

conceptualization. For Vera Helena de Mello Franco

"the Trade Act is the legal act, qualified by the

particular fact substantiate those for the movement of

the movable wealth and as such, conceptually

voluntary and directed effect for the purposes regulated

by commercial law".5

By this statement, denoted the approach to

a business concept, as it does not address trade isolated

acts.

It occurred yet and the definition of

commercial

acts

the

classification

of

being

distinguished in three species: in nature or subjective;

5FRANCO, Vera Helena de Mello. commercial law manual. São

Paulo: Journal of the Courts, 2001, vol. 1, p. 35.

9

by dependency or connection; and by force or authority

of law.

This time, the objective criteria adopted by

the Brazilian Commercial Code, did not meet the

coming needs of commercial acts and its variations.

In criticism of the objective system Oscar

Barreto Filho said: "If it is for the law, ultimately the

dealer definition, or Trade Act, and therefore the trade,

it follows irresistibly so that the Law Mercantil is

before a legislative category, rather than a logical

category. " 6

Informed in the third period of business

law, as already explained, such criticism lead to spread

of Brazilian legislation in the Italian Civil Code

templates 1942, ie subjectivity in the treatment of

relations and trade acts, giving rise to the Brazilian

legal system Consumer Protection code and the Civil

code of 2002.

The Civil Code of 2002, effective on

January 11, 2003, repealing Article 456 of the first part

6BARRETO FILHO, Oscar. The dignity of the mercantile law.

Journal of Banking and Capital Markets, year 2, 6, Sept./Dec.

1999, p. 299.

10

of the Commercial Code that fails to land regular

commercial activities, leaving regulation to the second

part, which is related maritime activities.

The sources of business law are divided

into two groups: primary (laws) and secondary

(customs and general principles of law).

Finally, from the force of the Civil Code

trade ceases to be the only activity governed by the law,

now being the Corporate Law, activities regulator

covering the professional exercise of economic activity

in order to produce or circulate goods or services.

Pursuant to Art. 966 of the respective code:

Considers

an

entrepreneur who professionally in

economic activity organized for the

production or circulation of goods or

services.

Single paragraph. It does not

consider

business

owner

who

exercises intellectual profession,

scientific,

literary

or

artistic

production, even with the help of

assistants or employees, unless the

profession

constitute

business

element.

2. Autonomy of business law

11

The business law is autonomous using the

inductive method, concluding the rule element through

the facts presented, unlike civil law. In addition to a

different

method,

business

law

has

certain

characteristics, such as burden, ease of formation and

extinction of obligations, punctuality, credit protection

and ease of transfer of obligations.

The ease of training, with the protection of

good faith is inherent in the business law, both in

training and extinction of obligations, since the middle

of operation, ie, the market is dynamic and therefore

requires a more rapid process .

As regards the transmission of the bonds,

put this represented through bonds, for example,

securities. Already credit protection is essential to the

exercise of business activity, Thus, it seeks to protect

the person responsible for the granting of credit, so that

it continues to conceive of it, keeping the development

of business activities.

Punctuality is characterized by compliance

with the provision or obligation wake up to the market

equity maintenance. The principle of burden is

12

demonstrated certain monetary cost to judge action

before the Judiciary.

This time, we can conclude that corporate

law is the right of the company, ie the exercise of

organized economic activity. Having as a disciplinary

objective market the right business follows certain

principles, as follows: free initiative, free competition,

private property preservation company, freedom of

choice and value of human labor. These principles are

based on the Federal Constitution.

According to the teachings of Fabio Ulhoa

Rabbit:

The

principles

of

commercial law are classified as

follows: constitutional or legal (as

are

housed

in

the

Federal

Constitution

or

statutory

law),

general or special (if they are

applicable to all the legal branch or

only one of its consequences) and

explicit or implicit (if expressly

provided for in rule of positive law or

result from this).7

3. Business and Entrepreneur

7RABBIT, Fabio Ulhoa. Commercial Law Course - company law.

16ªed. V.1. São Paulo: Saraiva: 2012. p.76.

13

Company and Entrepreneur, daily concepts

are confused, but on the legal definition is very

different.

3.1.Company

The company derives from a stemmed

definition of the economy and accepted in the legal

sphere. Now, therefore, is defined by the process

activity to articulate the factors of production, ie,

capital, labor, raw material and technology.

Turn (E. Bueno and FJ Valero, 1985)

address the theory of the firm as an organization.

"Business concept as an open technical partner system,

composed of various aspects in order to achieve

efficiency

and

competitiveness

with

the

environment."8

According to Fabio Nusdeo the "company

is the production unit whose task is to combine

production factors in order