Business Judgment Rule in Brazilian corporate law

• Grant number: 13/01278-2
• Support Opportunities: Regular Research Grants
• Start date: October 01, 2013
• End date: September 30, 2014
• Field of knowledge: Applied Social Sciences - Law - Private Law
• Principal Investigator: Luiz Antonio Soares Hentz
• Grantee: Luiz Antonio Soares Hentz
• Host Institution: Faculdade de Ciências Humanas e Sociais (FCHS). Universidade Estadual Paulista (UNESP). Campus de Franca. Franca , SP, Brazil

Abstract

§ 6 of art. 159 of Law n. 6.404/1976 (Corporate Law - LSA) authorizes the court to recognize that the trustee acted in good faith and in the interest of the company, the social action of liability for financial loss caused to society. In this case, the liability can be excluded from the administrator. It is possible arising of American law and called business judgment rule. With the application of the rule of business decision, protects the discretionary decisions taken by company managers upon exercise of the function, limiting the power of the judge's interference in the face of the presumption of regularity of administrative acts. The approach takes into account the conditioning of fairness to legal hypotheses (art. 127 of the Civil Procedure Code) and the principle of free evaluation of evidence by the court (art. 133), and corporate law provisions which exclude the liability of the trustee for regular management act (art. 158 of the LSA) and the duty of care (art. 153), and concludes by nature's own disposal analyzed (§ 6 of art. 159 of the LSA) and its impact on societies contractual or not. (AU)