Subscription of the share capital of which is essential for the formation and growth of a company, analyze the best means for increase of a situation.
Introduction
The subscription of capital is the starting point for the creation of the company, representing one of the first of the commitments made by its members in order to commence operations and to support the growth of your business. The ability of a firm to adjust its capital stock, by means of various methods to increase reflects their adaptability, and ambition to grow.
This article focuses on the key ways to increase the share capital by analyzing its practical applications, and the scenarios in which each type would be more appropriate. In this way, the main objective is to promote an understanding of the strategic value of social capital and empower the business owners and managers to make informed decisions, and which are in line with long-term goals of the company.
The concept of social capital
Social capital is the value of the home provided by the partners in the creation of the company, with the aim of facilitating the beginning of its activities, and to ensure the execution of their purpose. It can be made up of financial assets, whether material or immaterial, as long as it can be measured in money, as stated in art. 7 of the law 6,404/76.
It was established in the articles of association or by-laws, the social capital is not only a commitment of the partners, but it also serves as the legal guarantee in relation to third parties. After having been fully paid-up, evidence of the financial ability of the company to honour its obligations, the initial, creating credibility and trust in relationships, business, and law.
The act of compounding takes place in two steps to sign up and pay for shares. According to Coelho (2022): ‘The first is a measure of the amount of resources committed by the members, the company, under the heading’ capitalization, and the second one corresponds to the resources once they have been transferred to the corporate assets.’
In the simplest of terms, a subscription that symbolizes a pledge to the investment of the shareholders or stockholders, as the payment that represents the concrete realization of the investment in the company. That is, the subscription, the member agrees to contribute a certain amount to the company. When you make a full payment of such amount, he will complete the phase of creation.
It is important to highlight the distinction between social capital and net assets. The equity-refers to the collection of assets that the company owns. Already, the share capital represents the expression number, the currency, the value of the heritage that has been, or must be built-in to the company because of the contributions of the members.
In this context, it is important to note the analogy is made for a Grandson, and France, in chapter XV, ” Social Capital,’ in the work of the Treaty of Corporate Law, Vol. II, Ed. 2023 (2023):
‘To compare it with a glass dthe water explains the function of the glass shows you, at a moment in time (the end of each fiscal year), the capital and assets with values that are equal to, or will be, a result of the financial and without loss, and without profit; and if the water is overflowing from the glass, there is a profit; if the glass is not enough to fill it, there is a loss. Vivante compared to the capital stock of a container, the gauge of the spirit, and of the stockholders, to the grain that they can be overcome, the extent and in such cases, there will be a profit), whether or not the reach, in which case there will be a loss); and Garrigues, like a dam that holds back the water (and the assets), until they can overcome it, representing the net income which is of a distribution to the shareholders.’
Also, it is necessary to emphasize that, despite the fact that the capital to be established in the contract, or by statute, it is not immutable, and you can increase it or reduce it, as long as they meet the terms and requirements of applicable law. For example, the value of the capital stock cannot be changed after the establishment of the company is to meet the changing demands of strategy, it is an expansion, restructuring, as well as the adaptation to the circumstances of economic and market needs.
The structure of the share capital in limited liability companies, and anonymous
In this topic, we will explore the differences between a LTD company, limited, and the A/S – joint-stock company, especially in relation to the subscription, and the payment of the capital stock of each of these types of companies. Although the two share some characteristics, there are important differences in the composition and organisation of the share capital, which have a direct impact on the functioning and governance of each type of company.
In a limited partnership, as its name suggests, the liability of the members is limited to the value of its equity interests represented by shares, which, in turn, have a match in the capital. The concept of a quota, it is well-illustrated by me But hot Pepper, that is, describing the following:
‘Share it, then, a term which identifies the contribution of each and every one of the members, to the formation of a number of goods, and financial resources to what is called social capital. The sum of the arithmetic of the monetary expression of the shares of each and every one of the members, that corresponds to the value of the share capital of the company.'(Black PEPPER, 2023, p. 201).
All of the members, however, are jointly and severally liable for the payment of the share capital. The rule of limited liability of the shareholders in this company, it is excetuada if the value of the subscript is not a fully paid-up, in which case, the partner who did not, which was the full amount promised, this is referred to as the remisso, and you can be expelled from the society.
On the other hand, the S. A. joint stock company stands on a legal framework aimed at a profit, and in which the share capital is comprised of the shares representing the fractions of wealth and the control of the company. To the contrary, the limited partnerships in which the partners hold shares in the joint-stock company, the liability of the shareholders is limited to the value of the shares they have subscribed to or purchased. As stated Rabbit (2024): ‘social capital’ in this type of company is divided into units, which are represented by stock. Its members are called shareholders and they are liable for corporate obligations, up to the limit of what is yet to pay up the shares that they hold.’
This type of company may issue common stock, which will give the right to vote, and is preferred, which focused on the dividend, but they usually do not give the right to vote. The valuation of the shares reflected in the share capital as well as the perception of the profitability of the company in the market. The stock, which is reflected in the share capital in the joint-stock companies, are also used as a mechanism to differentiate between the partners, and managing the rights and obligations of each of them.
Another feature of the limited partnership and to the capital stock with respect to the formalities in the proof. While on LTD. is provided in the report of the evaluation of the property, whether material or immaterial, who make up the company’s capital, by the indication of its value to the contract, the a/S to Thes of this document, it is a must. Here, it was for the subscription in cash, there is no need for the presentation of the report of the trial, regardless of the type of company.
So, for example, in the formation of the LTD with a capital consisting of real property, simply describe them in the articles of association, by assigning them values. After the subscription, you shall be carried out on the update of the registration to the event, so that the ownership of those goods is to be transferred from the partner to the LTD. this is called the conference of the goods. For the S/S to Thes, and the process is the same, but with the by-laws, which will also be described, and the properties and their values should be given in the evaluation report.
In addition to this, the possibility of an increase and a decrease in social capital, limited liability company, may increase or reduce its share capital, as provided for in art. 1.081 at 1.084 of the CC, as long as all of the shares to be paid in full before any changes are made.
With the increase of the share capital of which is carried out by means of a simple modification of the articles of association, which, according to the stresses and Pepper (to 2023) p. 201), in order to increase the share capital, it is essential that all of the shares subscribed shall be paid in full, is given to the shareholders of the right of pre-emption in the subscription of the new shares, for a maximum period of 30 days after the approval of an increase in the assembly meeting of the company. Already, the reduction of the share capital of which is a complex and bureaucratic process, in an attempt to preserve the rights of the creditors of the company, after all, the capital serves as the legal guarantee in relation to third parties.
In joint-stock companies, and the increase of capital, it also is ok, but it’s not so simple, its execution as it is in the limited partnership. Here, the rise in support of the issuance of the new shares, subject to the prior meeting of shareholders, which will result in a change in the by-laws, the preparation of a subscription, and effective, with the book-keeping of the books of the company, the adjustment of the shares of the partners, and/or the admission of a new partner.
Modes of increase of share capital
As discussed throughout the article, while social capital is defined in the contract, or by statute, it is not set in stone. Alfredo Lamy Filho, and José luis Bulhões Pedreira, discuss all the ways for expansion in the capital and, by categorizing the transactions of the unilateral and bilateral arrangements, as outlined in his work, the Law of Companies (2 in. ed. Rio de Janeiro: Forense, 2017). Let’s see:
‘The increase of capital, it is a legal transaction that modifies the contract for the company, this could be one-sided (in the capitalization of profits or reserves), or bilateral, when what it means is the manifestation of the will of the company, which decides to create the actions, and the people who get.
They are the modalities of the deal bilaterally: (a) the purchase of treasury shares, and (b) the conversion into shares of common or of the parties to the beneficiary; and (c) the exercise of the warrants, and the exercise of an option to purchase shares of stock.’ (The SON, the QUARRY, 2017, p. 997).
The distinction between the types of the increase in the capital – one-way two – way- it is important to understand the various opportunities for the expansion and consolidation of the share capital of the company. In this chapter, we will discuss the concepts and methods of the main ways of increasing the capital stock.
Increase in the subscription of new shares
With the increase of the share capital, by the subscription of the new shares is an alternative strategy for companies that want to inject capital into its own, without resorting to external borrowing. In this case, our partners are responsible for the increase in the turning of the values of the investor in the subscription of the shares.
This kind of increase can also be a strategy to attract foreign investment. In this case, it is common that only a portion of these investments are to be converted to equity, in which case the other party as a capital gain.
With the increase of the share capital are subject to capital gain makes it possible to attract foreign investment, and the current members are not being fully diluted earnings per share. This is because, if you do not have a reservation on the part of the values, such as goodwill, all of the money spent by a third party, would be converted into the share capital increase, and the current members had their levels of interest in, fully diluted earnings per share. For this reason, it is often the operations of the subscription of the new shares arising from the capture of foreign investment are accompanied by the reservation of a certain part of the capital stock as a capital gain, so that an investor partner to join in the company with only a percentage of the interest he promised during the negotiations.
Also the increase of the share capital reserve capital gain, it is important to note its effect, deferred tax assets, since different depending on the type of company. In limited partnerships, the capital gain is taxable, and, as such, it can be found. In joint-stock companies, the capital gain is not subject to tax (at least up to this point, which makes popular, this type of company.
The amounts set aside as capital gain, however, is expected to be rolled out in the overvaluation of the stock.
This is the kind of expansion of capital, is not only a chance to finance, but it is also a strategy of participatory governance, and the protection against dilution. The second Son (2023), the process involves three elements: (i) the payment of the share capital prior to 3/4 (three quarters), at a minimum, (ii) the approval by a majority of 75% of the shareholders; and (iii) the exercise of the right of the screen. It also contributes to the stability of the corporate, and provides safety to the investor, who will remain on the company, with the same percentage, and the level of control.
The main benefit of a capital increase through a subscription with the ability to obtain the resources to go into debt, strengthening the company’s financial and improving its image in the market. However, it should be treated as such. If the shareholder or shareholders do not exercise their right to purchase, at the risk of facing a dilution of the stake, which would weaken their influence in the decision making process. Instead, these owners may choose to sell their subscription rights, they were to protect the economic value of participation, it means renouncing part of the control over the target company. (‘s grandson, 2023).
The increase in terms of market capitalisation of profits or reserves
The capitalization of profits or reserves, makes it possible for a company to convert a portion of their retained earnings, or to make a reservation at the capital, without the need to raise new funds from outside.
This allows you to increase the share capital with the built-in features, leading to the issuance of the new shares to the shareholders of the increase in the value of the existing shares, in proportion to the number of shares that you already own (law 6,404/1976, art. 169). Thus, the practice of preserving the representation of the shareholders, thus avoiding the dilution of their equity, and ensuring the security and stability of the investment in the company.
Is worth to remark that the accumulation of reserves may change in the par value of the shares or to result in the distribution of new shares to the shareholders ‘ meeting. In companies where the shares have no nominal value, the capitalization can be done without changing the total number of shares. Rezende (2023, p. 87).
For the Rabbit (2019), in this way the increase of the share capital without the capture of new knowledge, since it was only a correction of the internal resources of the company. In teaching, it is referred to as an ‘increase in free of social capital’, as it does not impact the shareholders ‘ equity of the company. In this context, Bunny quotes Galgano (1988, p. 368-369): ‘When you operate in the capitalization of profits or reserves, the company issues new shares to be distributed to them in proportion as between the shareholders or to keep the same number, in which case it will be the par value, if any, that is raised up’.
So, in this kind of case is it beneficial, as it enhances the stability of equity to prevent the spread of the investments, strengthening the company’s reputation as a self-sustainable. However, this approach may have limitations because of the dependence of the accumulated profits and reserves, it makes the increase of the capital of which is more limited in the times of the profitability is low or when the funds will be used for the purposes of operating, such as innovation and expansion.
Increase in inflation
The inflation of the share capital of which is a procedure that is used to grind the face value of the financial assets of a company, due to variations in inflation. This is important in order to preserve the power of social capital in periods of high inflation. In this way the increase of the share capital of which is regulated under the art. 167 of the corporations law (the law 6.404/76), which allows for the capitalization of capital reserve arising on the restatement of the paid-up capital, subject to the approval of the ordinary shareholders ‘ meeting.
This practice has gained a special importance in the economy inflation, because of what happened in Brazil, prior to the stabilization brought about by a real, or the law 9.249/95. According to Carvalho (2018), the inflation in that time period has reached such a magnitude that the monetary correction is no longer an option for shareholders, making it a requirement that is left to the assembly, only the type-approval of a value that is calculated by the government. The main purpose of this adjustment is to preserve the capital of the company at their actual value, thus protecting the equity of the investor against the dilution of value to you.
Following the provisions of the article mentioned above, the monetary adjustment is applied each year based on the balance sheet as of the closing of the fiscal year, creating a capital reserve which can be built-in in the capital. This embedding is usually does not involve the issuance of new shares, which allows them to preserve the aspect ratio of the participation of the shareholders ‘ meeting.
In those cases in which the shares have a par value, the amount is adjusted according to inflation. In private companies, the shares of a nominal value, and the shares, without par value, the adjustment is made separately for the shares of a nominal value, thus ensuring the maintenance of the principle of proportionality and the rights of the owners.
To maintain the economic value of the real capital stock, upgrading to the monetary help to preserve the attractiveness of the company to investors, especially in times of economic uncertainty. However, as noted by Detailing it, the company relies on an increase of share capital in order to face the difficulties with time-sensitive. As a rule, causes an increase in the capital when it is proposed to effectively extend the range of your business’ (cited in Carvalho, 2018).
Final thoughts
In conclusion, the increase of the share capital of which is a strategic tool which allows the firm to adjust its financial structure in response to the demands of the marketplace and your goals, expansion and growth. The choice of modality is the most appropriate depends on the specific goals of the organization is to facilitate the growth, the strengthening of the capital base, or to lure new investors. By subscribing, capitalization, profits, reserves, or for any other alternative, the company can choose the method that best aligns with their needs and to strengthen the equity or fund-raising. Thus, the financial structure is intended to support the growth and competitiveness, in order to ensure its strong position in the market.
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https://www.migalhas.com.br/depeso/419849/analise-da-modalidade-de-aumento-capital-social-conceito-e-aplicacao
Bullying and sexual harassment on the job: Identifying, combating, and the importance of reporting channels
Introduction
The ideal working environment is one in which the dignity, respect, and ethics are kept at. all rights reserved. However, the practice of bullying and sexual harassment are still a persistent problem, causing serious damage to the victims, and to other organizations. The present paper aims to identify the different types of bullying, the importance of reporting channels, the types of channels available and the best practices for their implementation, as well as the role of DET – Home Electronics to Labor in the audit.
The identification of the types of harassment
Bullying
Bullying is characterized by the repetition of abusive behavior that is intended to humiliate, embarrass, or to isolate the victim, usually with the intent to undermine his self-esteem, and then delete it from the desktop. Such behaviour may include the criticism of excessive and unjustified harm, social isolation, stress, or loss of a task, and even name-calling.
The identification of ‘moral harassment’ that requires the attention of the persistence, and the desire of the actions, if they occur in a systematic way, and are intended to be detrimental to the work environment of an individual or a group, it is likely that you are bullying.
Bullying can take a number of different ways, depending on the hierarchical relationship between the perpetrator and the victim, and they are:
Sexual harassment
Sexual harassment is a specific type of child abuse that often occurs in a context in which there is a relationship of power. It is characterized by the action of a sexually oriented, made by someone in a position of hierarchical, top-up against the contributor rank, even, in order to obtain advantages for women.
Sexual harassment is a crime and is defined in art. 216 of The Penal Code, which defines it as an act to embarrass someone in order to gain an advantage, or demanding sexual favors, subject to the condition of the immediate supervisor, or his victim.
This type of harassment is mainly manifested in:
Harassment, sexual
The harassment, and sexual, so as to differentiate itself from sexual harassment also occurs when an offender is committed to a lewd acts on a person without his or her consent, in order to satisfy his own lust, or other third parties.
The crime of harassment is sexual it is referred to in art. 215-a of The Penal Code, and it doesn’t require a reporting relationship between the perpetrator and the victim, it is common to occur between co-workers in the same position or a position inferior to a superior. Examples of this include rings that are inappropriate, kissing, forced, or in any other physical contact of a sexual nature are not permitted.
There are two main types of harassment, sexual:
The importance of reporting channels
The reporting channels are fundamental to the prevention of and fight against harassment in the workplace. It allows victims and witnesses of abuses to report the facts in a secure and confidential manner.
The effectiveness of the channels of the complaint is directly related to the trust that employees have in the system, which depends on many factors, such as anonymity, accessibility, and fairness in the handling of complaints.
Types of reporting channels
The reporting channels can be divided into two main types:
How to implement a channel for complaints effectively
For the ethical is to be effective, its implementation should follow a few best practices:
The importance of the guide and the positioning of the company to prevent control of the Y
To prevent the control from the labor ministry’s decision to the Ministry of Public Work, to minimize the risk of penalties, it is critical that companies take a proactive stance on the prevention of bullying and sexual harassment in the workplace. On the creation of informational brochures, and the position of the company in respect of the unfair practices that are key measures that demonstrate a commitment to compliance with the labor code, and the promotion of a healthy environment.
1. the Creation of informational brochures:
– The guide works as a how-to-guides for the employees and educating them about the different types of bullying, how to identify them, and the steps to be followed for reporting such conduct. These leaflets are to be distributed widely, and is updated on a regular basis to reflect changes in the law or in the internal procedures of the company. They are expected to cover:
2. The placement of the company’s
In addition to the primers, the company should adopt a policy of zero-tolerance against sexual harassment, and shall communicate this position is clear and consistent at all levels of the hierarchy. These include the following:
3.&you’re in this document;and to the following:
The company should be prepared for a potential audit of the labor ministry’s decision, by keeping all of your documentation is in order, such as:
4. Penalties and consequences
In the absence of these practices could result in severe penalties against the company in the event of an inspection by the labor ministry’s decision, including the following:
5. Prevention of profit.
To maintain a work environment that is free from harassment, not only to protect the company’s legal, but it can also promote a work environment that is more productive, healthier, and where all employees feel valued and respected. This reduces employee turnover, increases productivity, and strengthens the company’s image in the market.
The role of the DET
The GI is a digital tool that facilitates the communication between the Ministry of employment and the employer, in promoting greater transparency and efficiency in the fulfillment of the obligations of labor. Although it’s not a channel to the complaint, the DETAIL may help fight off the assault by ensuring that notices and communications to be promptly received and responded to by employers, strengthening accountability, and encouraging the adoption of best practices in the business.
Conclusion
The fighting at the moral and sexual harassment in the work environment, it is essential to create an environment that is healthy, productive, and responsible. The implementation of the reporting channels are effective, when combined with an awareness of the different types of bullying and its various manifestations, is the key to ensure the protection of our employees. This DETAIL, although it focuses on communication, they also play an important role in the creation of a work environment that is more secure, and more transparent. With the adoption of these measures, the companies not only to comply with their legal obligations, but also to demonstrate a real commitment to the dignity and well-being of its employees.
https://www.migalhas.com.br/depeso/414470/assedio-moral-e-sexual-no-trabalho-identificacao-combate-e-denuncia
Industrial property: the Guardian of the innovation and uniqueness
Introduction
Intellectual property plays an important role in the protection and enhancement of innovation and creation for business. Shall be governed by the law 9.279/96, for this area includes trademarks, inventions, utility models and industrial designs, ensuring the exclusive right to use it. Get to understand their ways, it is essential to maintain a competitive position in the market.
The basics of the intellectual property
These rights are essential in order to differentiate products and services in the market. Registration with the INPI (National Institute of industrial property, it is essential to ensure the legal protection and exclusive rights. The process begins with the submission of specific documents and compliance with the technical requirements that ensure the validity of the rights over the intangible. You have registered with the INPI is the most important step to secure and defend intellectual property rights.
The law 9.279/96 brings together all of the intangible property subject to registration by the INPI and the consequent right to the exclusive use of, and they are: Bullet; Inventions; utility patents; Industrial Designs.
The brand name is regarded as a sign affixed to a product, a commodity, or an indication of a service designed to help you distinguish it from others. Thus, the brand name is what identifies and distinguishes a product or service in the market, so the main requirement to be registered with the INPI it’s the distinctive and, therefore, to introduce a new addition compared to the market for the specified class in which it is located.
After the registration, the proprietor of a trade mark shall have exclusive use for up to 10 years (may be extended over the national territory and, as a rule, in their field of expertise.
Already, in the invention, it is the intangible outcome of the activity, dealing with the industrial application. In the invention, it is protected through the patent system, which ensures that the owner of the exclusive basis for up to 20 years.
Therefore, the utility model is a kind of refinement of the invention, that is, it is an element, the aggregate of the invention, and it requires a new, industrial applications, and in the act of invention. The utility model are also protected by the patent system, and warrants to the owner of the exclusive than 15 years of age.
In the end, the industrial design is a original and new for the specific product in order to make it unmistakable to the public consumer. To be able to be registered with the INPI must be a new creation of the original, which is not present on the original shape of the object, and is capable of processing. The registration of an industrial design ensures the exclusivity of 10 years (which can be renewed up to three times per 5 years).
Warranty is exclusive, and legal action
The holder of the intellectual property will only acquire the right to the exclusive use of the issue of a certificate of registration by the INPI. For this reason, companies that want to ensure the exclusive use of its trademarks, and inventions ‘ they should seek legal advice in an efficient, that you can consider and the need for the record in BRAZIL, in order to maintain their reputation in the market, and your valuable customers.
In addition, the law 9.279/96, also deals with the important aspects of industrial property rights, such as the rules on penalties applicable in cases of infringement of the protection against unfair competition. Among the penalties that are in the seizure of the goods and the payment of compensation to the owner is injured. In addition to this, the law suggests that the measures of protection against the misuse of geographical indications, and trade dress. Companies that want to ensure the integrity of your identity, visual, and territorial must adhere to the regulations and to consider the follow-up expert, to avoid legal disputes and to ensure the defence of the full rights of the intellectual property.
The challenges and tendencies in the industrial property office
Today, enterprises face significant challenges in protecting their intellectual property rights as a result of globalisation, and the increasing digitalization. With the proliferation of online platforms has facilitated the infringement of trade marks and patents, requiring constant monitoring and preventive measures to be effective. In addition to this, the increase in international competition intensifies, the need for strategies that are robust to advocate change. The current trends which include the use of advanced technologies such as artificial intelligence, artificial intelligence, and blockchain, to enhance the safety and the tracing of their rights. To align with international standards and is in the process of adapting to new market dynamics are essential in order to protect the safety and effectiveness of the protection of industrial property.
Some of the meanings of the courts
The sight of the important role played by the industrial property office of the Courts has already entered into some of the relevant views on the subject.
It is worth mentioning the understanding entered into by the supreme court for the compensation for damage to property, and compensation for damages to the off-balance sheet items, in the event of notice of the breach of the trade mark, there is no clear evidence of loss of material and moral, arising out of your use or misuse (One 1804035/DF, rel. ministra NANCY ANDRIGHI, 3rd class, and was published in 28/6/19).
In the framework of the high court of justice, the Court has to be reinforced in a number of decisions, on the principle of speciality, provided for in section XIX of the art. 124 of the law 9.279/96, which provides for the possibility of co-existence of trademarks that are similar or related, since they are not likely to cause the association of misuse or confusion on the market for consumer-to-consumer’S – AgInt in One 1663455 SP 2017/0048618-9, rapporteur: ministro Luis Felipe Salomão, 4th class, and was published in 25/11/21).
As for the Courts of the State, is a relevant example is the ruling of the ECJ, state of minas gerais, which determined that the protection of the brand is usually the case for trade dress (set of-visual-global is a product that gives you the visual identity, with the distinctive characteristics) of the companies (BK, MG – CA, 10000205796139001 MG), rapporteur: mr Arnaldo antunes Maciel, Town, Civil / 18-Civil Chamber, which was published in 23/2/21). Thus, in a general way, for the protection of trade dress that has been provided by the Courts based on the protection of the brand name, or the seal of the unfair competition law.
Criticism of the legislative process, the law on industrial property
The law 9.279/96, which is an industrial property in Brazil, and is the subject of severe criticism are significant in relation to the process of its development. One of the main criticisms is the fact that the initial draft of the law was drawn up in the English language, which led to concerns about the adequacy of the law to the specific characteristics of the brazilian market, and as far as the transparency of the legislative process. This move was seen by many as an attempt to align it with the brazilian legislation, will quickly take you to the international standards, without a due consideration of the needs of the locals.
In spite of the needs that are evident in the update, there is no project that is relevant to the reform of the law on intellectual property. Several factors, political and economic elements that have influenced this process, resulting in a stagnation that may hinder the effective protection of intellectual property rights, in Brazil. The modernization of the law, it has been seen by some legal experts as essential in order to ensure that the innovations are to be properly protected, both at the national and international levels.
The need for reform, according to Newton’s Games
Professor Newton, Of the Games, a well-known expert in business law and intellectual property, and pointed out the urgent need for reform of the law on the protection of industrial property. In their study, De Luca shows that the current legislation does not answer to the realities and demands of today’s marketplace, especially as a result of the rapid pace of technological change. He suggests that it is a far-reaching reforms is crucial in order to ensure that the brazilian laws and regulations continue to protect their innovations and creations in the business field.
Conclusion
Intellectual property continues to be a key pillar for the protection of the innovation and to the promotion of competitiveness in the global market. The modernization of the legislation, and the adoption of innovative practices are needed to address the challenges posed by globalization and digitization. It is imperative for companies to seek appropriate protection for their assets, intangible assets, and ensuring that the platform can be preserved and cherished.
BRAZIL. Lei nº 9.279 de 14 de maio de 1996. Provides for the protection of industrial property. Diário Oficial da União, Brasília, DF, brazil, may 15, 1996. Section 1.
DANNEMANN, SIEMSEN, BIGLER, and the IPANEMA MOREIRA. Comments on intellectual property law, and alike. Rio de Janeiro: Renovar, 2001.
DI BLASI, Gabriel, GARCIA, Mario S.; MENDES, Paulo Parente, M., The protection of industrial property. Rio de Janeiro: Forense, 2002.
HONESTLY, Vera Helena de Mello. The Manual of commercial law. São Paulo: Revista dos tribunais, 2001. y-1.
https://www.migalhas.com.br/depeso/414406/propriedade-industrial-guardia-da-inovacao-e-exclusividade
DET e DJE: Features, and awards – a Guide for employers and principals
Recently, new tools have been implemented in order to change the receive mode, and the science citation and notification issued by the Ministry of Labour, and by the Brazilian Judiciary system. In this article, we explore the main features of these tools and the necessary details – Home Electronics with Labour and the DJE – Home-Judicial E -highlighting their differences, features, and enforcement.
What is the DETAIL?
The GI system is a system of Government, that is managed by a SIT – Department of Labour Inspection, which is part of the MINISTRY of labor and employment, Ministry of Labour and Employment. This system was established in order to cater to the art. 628-The CLT, which provides electronic communication between the Audit and Tax Work, and employers.
The goal of the necessary details for you: * to Increase the transparency and efficiency, and the relationship between the government and the employers. The DETAIL makes it easier to digital communications between the Auditors and the employer, ensuring the highest security and transparency of the information passed as well as reduce the duration of the process (es) and operating costs.
Who should use it in the DETAIL? The use of the necessary details it is mandatory for all employers, irrespective of whether they are employees, including employers ‘ home. It is essential that all employers (individuals and legal entities despersonificados, among other things) to keep your records updated in the DETAIL, as the guidelines are available in the Manual of the DET1.
To access the DETAIL: in THE platform of the necessary details and can be accessed from any operating system can connect to the Internet, and by means of authenticating via login to the account of government.br, or by means of a Digital Certificate. Notifications will be sent to you by e-mail to the contacts that are registered with, and informs them about the existence of the additional information in the Box that the post office DETAIL. However, the science officer of the employer, it only occurs with the message you directly on the platform, and it is not the e-mail address.
Time limits and penalties for the use of the DET
The deadline for the reading of e-mails: it Is crucial for employers to be mindful of the time limit for the reading of the messages that are received in the DETAIL. The notifications have not been read within 15 (fifteen) days shall be considered to be received fully. In some cases, this period may be lower than that specified in the notice you received.
The penalties for non-compliance: non-compliance with the obligations of the DETAIL may result in fines ranging from$ 208,09 R$ 2.080,91, depending on the severity of the infraction.
DJE: Focus on the communications, legal
The DJE is a digital platform that is created for you to centralize the communication of process, summons and subpoenas for the persons, legal entities and private individuals. The DJE, which unifies the communication methods have previously been used, providing a centralized solution for the communication process.
Platform for the Communication Process: Designed to meet the needs of the society and of the courts of this platform to centralize all your communications with procedural and electronic courts in a one of a kind.
Registration on the DJE: register at DJE is mandatory for organizations such as the Union, the states, the Federal District and the municipalities, institutions of direct administration, public and private companies, medium-sized and large-sized businesses. For the micro, small and mid-sized businesses, the survey is optional and, so long as they have the email address registered in your system’s Redesim, as well as for private individuals. Details are on the registration form is available in the Manual of the DJE1.
Best practices for the use of the GI and the DJE
In order to ensure compliance with the law and avoid penalties, companies should adhere to best practices, such as:
The registration is correct, please make Sure that the registered e-mail address to be accessed on a regular basis by more than one person.
Daily check: Go to the platforms in DETAIL, and DJE every day to see the new communications, and avoiding to lose time limits are important.
The organization of the flow of a work: to Establish a clear workflow to manage the the notifications and communications received by such platforms.
Conclusion
The implementation of the necessary details and DJE represents a significant step forward in the modernization of the communication between the Public Administration, the Judiciary, and the employer, in promoting greater efficiency, transparency and security for the fulfilment of legal obligations. To keep up-to-date and compliant with the these platforms, it is essential to avoid any penalties and to ensure the management of the legal function efficiently.
1, Available at: https://det.sit.trabalho.gov.br/manual/
2, Available at: https://www.cnj.jus.br/wp-content/uploads/2023/12/manual-do-usuario-domicilio-judicial-eletronico-ed2.pdf.
Heritage in the digital world
The world population is increasingly inserted in a technological context, in which many of the operations and activities previously carried out exclusively in person, are now carried out online.
Following the packaging of these changes and reforms, several cryptoassets (virtual currencies) were created, the most famous of which is Bitcoin, which is already used in various business operations, and it should be noted that, in 2021, the Government of El Salvador approved a law making said currency official in the country, along with the US dollar, and in April 2022, the Central African Republic, in the same sense, also adopted Bitcoin as legal tender alongside the CFA Franc.
In addition to crypto assets, there are several other digital assets that have a financial value. As an example, one cites the air miles, ebooks (digital books) and social networks of digital influencers, with millions of followers, through which it is possible to bill a high daily amount with advertisements.
Another interesting example is the game Counter-Strike: Global Offensive, in which a special look of the AK-47 machine gun – just contextualizing,said game is a shooter – was sold for $400,000,001.
However, it is not always that these digital goods have an economic value. The social media accounts of non-famous people, with few followers, despite containing several photographs and memories – which, of course, have a value to their owner – have no economic value.
in this scenario, a question that is currently asked a lot: what happens to these digital assets when there is the death of its owner?< / strong>
It is up to the law to monitor these developments and try to respond to the problems that arise.
Inheritance Law
Succession law is a complex of legal principles and rules that govern the transfer of a natural person’s assets, whether assets or liabilities, to after death, by virtue of the law or testament.
Oliveira and Amorim (2018, P.37), define that “Succession is the act or effect of succeeding. It has the sense of substitution of persons or things, transmission of rights, charges or goods, in a legal relationship of continuity”.
Within the succession there is the figure of legitimate succession, which refers to the transfer causa mortis granted to persons designated in the legislation as necessary heirs of the author of the inheritance, identified through the so-called Order of hereditary vocation or by specific rules of appointment of successors. It is these individuals who will be called upon to acquire the inheritance, either in the absence of each other or in situations of competition between them.
The Brazilian Civil Code adopts as criteria family ties, consanguineous (biological affiliation) or civil (adoption), and the bond arising from marriage or stable union.
The legitimate succession can comprise the entire hereditary estate, or restrict to the part not understood by the will. The natural person can, during his life, only dispose of the available part of his assets, corresponding to 50% of the total of his patrimony (a percentage that will be earned only when he dies). In the meantime, Maria Berenice Dias teaches (2021, P. 153-154):
The holder of the patrimony cannot freely dispose of all his property, neither during his life, nor for after his death. He can only donate what he can dispose of by Will (CC 549). Thus, even if he is fully capable, the freedom of those who have necessary heirs is not absolute. The law chooses certain persons who will necessarily receive part of the estate: descendants, ascendants and spouse. These are the so-called necessary heirs. Half of the inheritance goes to them. The legitimate succession imposes the transfer of half of the patrimony to whom the law elects as heir. Only the other half is available, and the holder is free to use it at will. He can donate as long as he lives or, by means of a will, he can leave to whom he pleases all the available half, a fraction of it, or certain goods (CCC 1.786). Testamentary heirs receive a share-part of the inheritance, and legatees-identified property.
The figure of The Testament is also about a last manifestation of a person’s will, in which the deceased disposes, for after death, in whole or a part of his assets to third parties.
There are several legal requirements and formalities for drawing up a Will, which must be strictly respected to be considered valid, under penalty of nullity.
The Brazilian Civil Code provides for three ordinary forms of will:
International and Comparative Law
As stated, the issue of digital heritage is not unique to a single country, but rather a global challenge that requires comprehensive and adaptable legal approaches. Around the world, lawmakers and legal experts are seeking ways to deal with the transfer of digital assets after the death of the holder.
In countries such as the United States and some European countries such as the United Kingdom and France, specific legislation has been proposed and in some cases implemented to address digital heritage. These laws aim to clearly define the rights of heirs in relation to digital assets and establish procedures for their proper transfer and Management4.
For example, in the United States, some states have enacted laws that allow users to designate a “digital executor” in their wills to handle their online accounts after death. These executors have the legal authority to access and manage the deceased’s digital accounts according to their instructions.
However, despite advances in some countries, there is still a lack of harmonization and consistency in digital inheritance laws around the world. This can create challenges for individuals and families with digital assets in different jurisdictions.
In addition, in many developing and emerging countries, specific legislation on digital heritage is still in the early stages of development. This can result in legal uncertainty and practical difficulties for heirs when dealing with digital assets in succession cases.
Given this, it is essential that legislators continue to monitor and respond to changes in the digital environment by developing updated and adaptable laws and regulations that protect the rights of individuals and ensure a smooth and fair transition of digital assets after the death of the holder. International cooperation and sharing of best practices are also key to addressing the global challenges presented by digital Heritage.
Conclusion
For all the above reasons, all digital assets of an exclusively patrimonial nature must be transferred to successors after the death of their owner. In the case of non-patrimonial digital assets, these should not be transferred to their relatives at the time of death, with the exception of the express manifestation of the holder while still alive.
However, exceptionally, access to these assets must be possible, when there is a Just Cause, which must be evaluated individually by the judiciary, in order to try, in the best possible way, to reconcile the interests at stake.5
In addition to the legal and procedural issues surrounding digital inheritance, it is important to consider the ethical and human aspects related to digital assets. As mentioned, digital assets can contain not only patrimonial value, but also memories, relationships and personal identity of the deceased. Therefore, when dealing with the transfer and management of these assets, it is critical to ensure that the interests and wishes of the holder are respected. The possibility of access to non-patrimonial digital assets, under exceptional circumstances and upon judicial evaluation, aims to balance the rights of heirs with respect to the privacy and dignity of the deceased, through sensitive access, recognizing not only their financial value, but also their emotional and personal significance for those we leave behind.
1 GUGELMIAN, Philip. Counter-Strike: Global Offensive Skin sells for $ 400k Adrenaline, 2023. Available at: https://www.adrenaline.com.br/games/skin-de-counter-strike-global-offensive-e-vendida-por-us-400-mil/. accessed on: 15 jan. 2024
2 keys, Natalia. Digital heritage in Brazil: legal challenges and perspectives. In: CANSIAN, Adriana; MIELE, Aluísio; CINTRA, Caio; COLOMBO, Cristiano; CABELLA, Daniela; ARAÚJO, Débora; MONTE-SERRAT, DIONÉIA; PIMENTA, Eduardo; CANO, Flávia; JALLAIS, Gabriel; LIMA, Gabriel; FERRARI, Giovanni; FALEIROS JÚNIOR, José Luiz (org.); CAMARGO, Júlia (org.); ROCHA, Lucas; SOUZA, Maique; MATTIUZZO, Marcela; MILAGRES, Marcelo; CHAVES, Natália; LIMA, Pedro Henrique; QUINELATO, Pietra; QUEIROZ, Renata; CALAZA, Tales; HAYASHI, Victor; MARQUES, Vivian; ENGELMANN, Wilson; CARVALHO, CARAVALHO, Anne Isabelle; NOGUEIRA, Michele (org.); PARENTONI, Leonardo (org.). Law, Technology and innovation vol. 5 Internet of Things (IoT). 1. ed. Center for Research In Law, Technology and innovation – Dtibr Center. 2023. p. 337
3 ZAMPIER, Bruno. Digital goods-cyberculture, social networks, emails, music, books, air miles, virtual currencies. 1. ed. Indaiatuba. Editora Foco Jurídico. 2017. pp. 124-125.
4 keys, Natalia. Digital heritage in Brazil: legal challenges and perspectives. In: CANSIAN, Adriana; MIELE, Aluísio; CINTRA, Caio; COLOMBO, Cristiano; CABELLA, Daniela; ARAÚJO, Débora; MONTE-SERRAT, DIONÉIA; PIMENTA, Eduardo; CANO, Flávia; JALLAIS, Gabriel; LIMA, Gabriel; FERRARI, Giovanni; FALEIROS JÚNIOR, José Luiz (org.); CAMARGO, Júlia (org.); ROCHA, Lucas; SOUZA, Maique; MATTIUZZO, Marcela; MILAGRES, Marcelo; CHAVES, Natália; LIMA, Pedro Henrique; QUINELATO, Pietra; QUEIROZ, Renata; CALAZA, Tales; HAYASHI, Victor; MARQUES, Vivian; ENGELMANN, Wilson; CARVALHO, CARAVALHO, Anne Isabelle; NOGUEIRA, Michele (org.); PARENTONI, Leonardo (org.). Law, Technology and innovation vol. 5 Internet of Things (IoT). 1. ed. Center for Research In Law, Technology and innovation – Dtibr Center. 2023.
5 ZAMPIER, Bruno. Digital goods-cyberculture, social networks, emails, music, books, air miles, virtual currencies. 1. ed. Indaiatuba. Editora Foco Jurídico. 2017. Q. 128
OLIVEIRA, Euclides; Amorim, Sebastião. Inventory and sharing: theory and practice. 25. ed. São Paulo: Saraiva Educação, 2018.
DIAS, Maria Berenice. Handbook of successions. 7. ed. rev., current. and ampl. Salvador: Editora JusPodivm, 2021.
CANSIAN, Adriana; MIELE, Aluísio; CINTRA, Caio; COLOMBO, Cristiano; CABELLA, Daniela; ARAÚJO, Débora; MONTE-SERRAT, DIONÉIA; PIMENTA, Eduardo; CANO, Flávia; JALLAIS, Gabriel; LIMA, Gabriel; FERRARI, Giovanni; FALEIROS JÚNIOR, José Luiz (org.); CAMARGO, Júlia (org.); ROCHA, Lucas; SOUZA, Maique; MATTIUZZO, Marcela; MILAGRES, Marcelo; CHAVES, Natália; LIMA, Pedro Henrique; QUINELATO, Pietra; QUEIROZ, Renata; CALAZA, Tales; HAYASHI, Victor; MARQUES, Vivian; ENGELMANN, Wilson; CARVALHO, CARAVALHO, Anne Isabelle; Nogueira, Michele (org.); PARENTONI, Leonardo (org.). Law, Technology and innovation vol. 5 Internet of Things (IoT). 1. ed. Belo Horizonte. Center for Research In Law, Technology and innovation – Dtibr Center. 2023.
ZAMPIER, Bruno. Digital goods-cyberculture, social networks, emails, music, books, air miles, virtual currencies. 1. ed. Indaiatuba. Editora Foco Jurídico. 2017.
Business law and the updating of the Code of Civil
On September/23, at the initiative of the president of the Federal Senate, Rodrigo Pacheco, the Commission of Jurists responsible for reviewing and updating the Civil Code was created, chaired by the minister of the STJ, Luis Felipe Salomão.
The Commission of Jurists concluded on 4/5/241 the analysis of the final report, which was presented to the plenary of the Federal Senate on 4/17/242. From now on, the Senators will analyze the proposal sent by the committee of Jurists, which will be filed as a bill by the president of the Federal Senate.
To update the aspects involving Business Law, the subcommittee on Business Law was established, which sought to promote adjustments in the discipline and interpretation of business, with reinforcement of private autonomy, taking into account aspects that are typical of these businesses, seeking legal certainty and greater predictability, adopting the theses that are consolidated by the STJ to settle understandings of the Superior Court.
Among the suggestions for innovations and updates proposed in the final report3, it is worth mentioning the creation of an article that brings principles of business law, inserted in Article 966 – A, which thus provides:
In the same vein, specific rules for business contracts were created, in addition to their own rules of interpretation, in harmony with the principles transcribed above, as provided for in Article 421-C:
“Art. 421-C. civil and business contracts are presumed to be equal and symmetrical, if there are no concrete elements that justify the removal of this presumption, and are thus interpreted by the rules of this code, subject to the legal regimes provided for in special laws.
Sole paragraph. For their interpretation, enterprise contracts require the following additional parameters of consideration and analysis:
As noted, there is a clear intention to reinforce, through Express and specific foresight, the need to respect the principle of private autonomy in business relations, which consists of the power recognized by the legal order to individuals to dispose of their interests, especially economic ones (negotiating autonomy), freely conducting legal business and determining the respective effects (PRATA, Ana. Constitutional protection of private autonomy. Coimbra: Almedina, 1982, p.11)4.
Private autonomy, although modernly it has given way to other principles (such as good faith and the social function of the contract), is still presented as the cornerstone of the system of private law, especially in terms of Business Law.
Its immediate presupposition is freedom as a juridical value. Mediately, ethical personalism also appears as a foundation, with the conception that the individual is the center of the legal system and that his will, freely expressed, must be protected as an instrument for achieving justice (AMARAL NETO, op.cit. p. 17).
The principle is embodied, fundamentally, in contract law, through a threefold dimension: contractual freedom, the binding force of pacts and the relativity of contracts.
Contractual freedom represents the power given to the parties to choose the business to be concluded, with whom to contract and the content of the contractual clauses. It is the wide range of autonomy granted by the legal system to the manifestation of the will of the contractors.
On the other hand, the binding force of contracts is the counterpoint of contractual freedom. If the agent is free to carry out any legal business within civil life, he must be responsible for the acts carried out, since contracts are concluded to be fulfilled (pacta sunt servanda).
Judicial control over clauses in business contracts is more restricted than in other sectors of private law, since negotiations are initiated between professionals in the business area, observing rules usually followed by members of this sector of the economy.
This is the consolidated understanding that has been adopted repeatedly by the state courts and by the STJ, which is also a consensus in the doctrine on the subject, so it is commendable the intention of the committee of Jurists to reinforce such points, through the express provision of these issues in the Civil Code, in order to achieve greater security and predictability in business relations.
Finally, just for information, the draft amendment to the Civil Code also changed the regulations of foreign companies operating on national soil, requiring them to have headquarters and legal representative in Brazil for their regular operation.
The State Council of Commercial Law of FEDERAMINAS will continue to monitor the legislative process involving the reform of the Civil Code, with regard to Business Law, in order to keep the commercial and Business Associations of the state of Minas Gerais informed and updated on the subject.
1 available in: https://www12.senado.leg.br/noticias/audios/2024/04/comissao-de-juristas-para-revisao-do-codigo-civil-conclui-relatorio-final
2 https://www12.senado.leg.br/noticias/audios/2024/04/anteprojeto-do-novo-codigo-civil-e-apresentado-em-plenario
3 https://legis.senado.leg.br/comissoes/comissao?codcol=2630
4 AgInt nos EDcl no REsp n.1.902.149/DF, rapporteur Minister Paulo de Tarso Sanseverino, Third Class, judged on 3/4/2023, DJe of 27/4/2023.
The Use of Screen Shots as Evidence in the proceedings
Atualmente as redes sociais em geral e, principalmente, o WhatsApp fazem parte do dia a dia da maioria dos brasileiros, sendo que a qualquer momento podemos tirar uma captura de tela (“print”) e guardar qualquer informação.
A utilização tão frequente dos meios de comunicação online e imediatos, trouxe a possibilidade de produção de provas através dos aplicativos de comunicação, como por exemplo, provas da ocorrência de um golpe em compra de mercadoria, descumprimento de acordos realizados informalmente, ocorrência de danos materiais ou morais e, até mesmo, confissões de práticas ilícitas.
O Código de Processo Civil, vigente no Brasil, traz em seu artigo 369 a disposição acerca da produção de provas processuais:
“Art. 369. As partes têm o direito de empregar todos os meios legais, bem como os moralmente legítimos, ainda que não especificados neste Código, para provar a verdade dos fatos em que se funda o pedido ou a defesa e influir eficazmente na convicção do juiz.”
Ou seja, as partes de um processo podem provar o que alegam da forma que quiserem, desde que dentro da lei. Neste passo, seria possível deduzir que a produção de prova através de “print” de WhatsApp é válida na esfera judicial.
Contudo, em decisão recente, a 6ª Turma do Superior Tribunal de Justiça entendeu pela invalidade de prova obtida por “print” de WhatsApp, tendo em vista que o aplicativo disponibiliza ferramentas capazes de alterar a verdade dos fatos, como, por exemplo, a oportunidade de apagar ou, até mesmo, editar uma mensagem já enviada, vejamos:
“Esta Sexta Turma entende que é invalida a prova obtida pelo WhatsApp Web, pois “é possível, com total liberdade, o envio de novas mensagens e a exclusão de mensagens antigas (registradas antes do emparelhamento) ou recentes (registradas após), tenham elas sido enviadas pelo usuário, tenham elas sido recebidas de algum contato. Eventual exclusão de mensagem enviada (na opção “Apagar somente para Mim”) ou de mensagem recebida (em qualquer caso) não deixa absolutamente nenhum vestígio, seja no aplicativo, seja no computador emparelhado, e, por conseguinte, não pode jamais ser recuperada para efeitos de prova em processo penal, tendo em vista que a própria empresa disponibilizadora do serviço, em razão da tecnologia de encriptação ponta a ponta, não armazena em nenhum servidor o conteúdo das conversas dos usuários” (RHC 99.735/SC, Rel. Ministra LAURITA VAZ, SEXTA TURMA, julgado em 27/11/2018, DJe 12/12/2018). 4. Agravo regimental parcialmente provido, para declarar nulas as mensagens obtidas por meio do print screen da tela da ferramenta WhatsApp Web, determinando-se o desentranhamento delas dos autos, mantendo-se as demais provas produzidas após as diligências prévias da polícia realizadas em razão da notícia anônima dos crimes.” (STJ – AgRg no RHC: 133430 PE 2020/0217582-8, Relator: Ministro NEFI CORDEIRO, Data de Julgamento: 23/02/2021, T6 – SEXTA TURMA, Data de Publicação: DJe 26/02/2021).
Apesar de a decisão ter sido prolatada em processo criminal, o entendimento vem sendo utilizado pelos Magistrados das varas cíveis para invalidar provas obtidas através de “print” de WhatsApp:
“Para a configuração da ilegitimidade ativa na Ação de Execução de Título Extrajudicial, é necessária a prova inequívoca de que o exequente não é o credor de direito – Em recente julgado do STJ (AgRg no RHC 133.430), foi firmado entendimento de que meros prints de tela de WhatsApp não se prestam como meio de prova – Tendo sido o contrato, utilizado como título exequendo, firmado entre as partes que compõem a lide, não há que se falar em ilegitimidade ativa -Nos termos do art. 784, do CPC, é título executivo extrajudicial, dentre outros, “o documento particular assinado pelo devedor e por 2 (duas) testemunhas” – O Superior Tribunal de Justiça vem formando entendimento de que nos casos em que houver comprovação do negócio jurídico firmado entre as partes por meios idôneos, como a confirmação da realização da avença pelas partes, o requisito de duas testemunhas assinando o contrato é mitigável no que se refere à formação do título exequendo ( AgInt no REsp 1.870.540/MT) – Nos termos do art. 360, I, do CC/2002, a novação ocorre “quando o devedor contrai com o credor nova dívida para extinguir e substituir a anterior”. Assim, não havendo comprovação de que as notas promissórias alegadamente emitidas pelo embargante se prestaram a novação da dívida com o exequente, não deve haver reconhecimento da existência de novação.”
(TJ-MG – AC: 10074170061910001 Bom Despacho, Relator: José Eustáquio Lucas Pereira, Data de Julgamento: 28/09/2021, Câmaras Cíveis / 18ª CÂMARA CÍVEL, Data de Publicação: 28/09/2021).
Ainda, além da utilização do entendimento do STJ, os Tribunais vêm expondo seus próprios entendimentos acerca do tema:
“Ação de indenização. Dano moral. Recebimento de mensagem por aplicativo. Ausência de prova da origem das mensagens. Prints juntados desacompanhado de ata notarial. Aplicação do artigo 384 do CPC. Alegação de ato indevido praticado por preposto da ré quando da aplicação de injeção. Ausência de provas sobre o alegado. Improcedência da ação. Recurso da autora improvido.”
(TJ-SP – AC: 10001535320188260012 SP 1000153-53.2018.8.26.0012, Relator: Ruy Coppola, Data de Julgamento: 27/11/2019, 32ª Câmara de Direito Privado, Data de Publicação: 27/11/2019).
“Apelação cível. Consórcio. Promessa de contemplação. Não comprovação. Conversas por aplicativos de mensagem eletrônica. Whatsapp. Único meio de prova. Impossibilidade. Responsabilidade afastada. Recurso provido. A utilização de prints de mensagens eletrônicas pelo aplicativo Whatsapp não pode ser admitida como único meio de prova, dada a possibilidade de edição da conversa, mediante a possibilidade de exclusão de mensagens, sem que possa ser recuperada para fins de realização de perícia. Não demonstrada a prova de que a parte autora foi induzida em erro, quando da assinatura do contrato de participação ao grupo de consórcio ou que houve promessa de contemplação, é impossível a responsabilização civil por danos materiais e morais.”
(TJ-RO – AC:70336341220198220001 RO 7033634-12.2019.822.0001, Data de Julgamento: 30/09/2021).
Analisando o entendimento das Cortes, devemos nos munir de todos os tipos de provas possíveis, sendo que, o ideal é que o fato alegado possa ser comprovado através de diversos meios de prova como um contrato formal assinado, troca de e-mails ou, até mesmo, prova testemunhal.
Caso existam apenas provas produzidas através de conversa de WhatsApp, a orientação seria a elaboração de Ata Notarial em Cartório assinada pelo Tabelião, visto que este tem fé pública e irá dar validade às conversas realizadas através dos meios de comunicação online[Ld1] .
Ainda, existem novas ferramentas digitais, como os sites https://www.verifact.com.br/ e https://originalmy.com/, que realizam a validação de prints de conversas de WhatsApp de maneira simples e mais econômica.
Os Tribunais estão cada dia mais abertos a utilização de sites e programas de inteligência artificial, o que pode facilitar a continuidade da utilização de prints como documento probatório em eventual demanda judicial, portanto, sempre procure orientação jurídica para dar validade aos prints antes de incluí-los em um processo.
Giovanna Pedroni Collini
Advogada, graduada em direito pelo Centro Universitário Padre Anchieta (2022), Pós-graduanda em Direito Processual Civil pela PUC-MG, Inscrita na Ordem dos Advogados do Brasil, Secção São Paulo (OAB/SP) (2022). Advogada do Departamento Contencioso e Trabalhista no TM Associados.
The alternatives are Legal for the Resolution of Disputes between the Members, with Equal Participation
Não é raro de se observar desacordos e desalinhamentos entre os sócios de uma sociedade, uma vez que a diversidade de pessoas e personalidades, inevitavelmente, leva a uma variedade de opiniões, o que por sua vez pode resultar em divergências quanto ao próprio funcionamento e desenvolvimento do objeto social da sociedade. Especialmente nas sociedades limitadas, em que o affectio societatis é elemento intrínseco, tais desacordos e desalinhamentos podem ocasionar sérias consequências.
Há de se ressaltar, logo inicialmente, que nem todos os conflitos enfrentados pelos sócios são considerados impasses ou, como denomina a doutrina, “deadlock”. Considera-se “deadlock” apenas os conflitos sobre uma diretriz fundamental para a sociedade.
Esse tipo de conflito não pode ser solucionado por meio de acordo entre as partes, uma vez que não é possível obter o quórum necessário para aprovar uma deliberação de extrema importância para a sociedade, o que se torna ainda mais difícil quando a estrutura societária concede uma participação igualitária aos sócios, como por exemplo, uma sociedade limitada com dois sócios, cada um com participação de 50% (cinquenta por cento).
Quando nos deparamos com esses confrontos, em geral, três são as maneiras de resolvê-los: a autotutela, a autocomposição, e a heterocomposição.
Na autotutela as partes empregarão seus próprios recursos para solucionar o conflito. Já na autocomposição as partes, por meios próprios, resolvem o impasse, sem recorrer à aplicação da força e, por fim, na heterocomposição as partes se utilizarão de um (ou mais) terceiros para decidir a questão por elas.
Existem as formas tradicionais de solucionar os impasses, como a mediação, a arbitragem e o ajuizamento de demandas judiciais (Poder Judiciário), sendo essa última, em que pese todas as suas desvantagens, a mais comumente utilizada.
A mediação
A mediação se mostra um recurso eficaz na resolução de disputas, especialmente quando os sócios possuem igualdade de poder (em que cada sócio possui 50% do capital social). Conforme estabelecido na Lei nº 13.140/2015, um mediador auxilia as partes a forjar uma solução consensual para a questão.
O mediador atua de forma imparcial, desempenhando o papel de facilitador na identificação das reais necessidades e interesses das partes. Ele não oferece sugestões de soluções, mas auxilia na construção da resolução e, mais do que isso, busca, também, restaurar a relação entre os sócios. A confidencialidade da mediação é um aspecto relevante, especialmente em casos que envolvem informações confidenciais.
O procedimento de mediação pode ocorrer em uma câmara escolhida de comum acordo pelas partes ou de maneira mais informal, com a escolha de um mediador acordada entre elas. Aqui, é importante ressaltar a confidencialidade da mediação, especialmente em casos que envolvem informações confidenciais.
A arbitragem
A arbitragem é regulada pela Lei nº 9.307/1996 e consiste em transferir a um arbítrio ou tribunal arbitral a responsabilidade de solucionar uma disputa e, diferentemente da mediação, um terceiro assume a responsabilidade pela decisão final. Esse método oferece benefícios como a previsibilidade dos prazos e a impossibilidade de apelação contra a decisão arbitral.
Ademais, as partes podem optar por um árbitro altamente especializado na matéria da controvérsia e, também, é confidencial, o que reduz a exposição dos envolvidos.
Em que pese ser um método que não envolve o Poder Judiciário, caso a decisão arbitral não seja cumprida, deve-se a ele recorrer. A decisão arbitral é considerada título executivo e pode ser, em caso de inadimplemento, executada através dos mecanismos coercitivos que dispõe o Poder Judiciário.
Poder Judiciário
Ao tratar-se de conflitos tem-se que uma das primeiras – e mais utilizadas – possibilidades de solução é o Poder Judiciário, por meio do qual a decisão cabe ao Estado-Juiz.
A utilização do Poder Judiciário é garantida pelo princípio da inafastabilidade do controle jurisdicional, consagrado no art. 5º, XXXV, da CFB/88[1], porém, diante especialmente de sua morosidade, a utilização do Poder Público pode não ser a alternativa mais eficaz.
Além dos métodos tradicionais, antes mencionados, existem alternativas contratuais para solucionar os impasses entre os sócios, as chamadas “cláusulas de impasse”, mais comumente conhecidas como “deadlock provisions”. São mecanismos para solucionar possíveis impasses e conflitos entre os sócios e a essência dessas cláusulas reside em seu caráter contratual, sendo que apenas são acionadas se as partes envolvidas optarem por incluí-las no contrato ou estatuto social. Não são impostas por regulamentação legal, mas derivam da livre vontade das partes contratantes.
Neste contexto, o princípio jurídico do “pacta sunt servanda” assume importância fundamental. Ele estipula que o que as partes acordaram deve ser cumprido, desde que não viole as leis ou o sistema jurídico vigente. Em outras palavras, as partes têm a liberdade de estabelecer regras e procedimentos para lidar com impasses e conflitos, contanto que essas disposições estejam em conformidade com as leis existentes.
As cláusulas de impasse podem assumir uma variedade ampla de formas e procedimentos, geralmente sendo adaptadas para atender às necessidades e características específicas de cada sociedade e das partes envolvidas. Alguns exemplos de disposições de impasse são:
Cláusulas escalonadas
As cláusulas chamadas de cláusulas escalonadas, também conhecidas como cláusulas “med-arb”, estipulam a resolução de conflitos inicialmente por meio de um processo autocompositivo, como a mediação. Caso as partes não alcancem um acordo consensual, têm a opção de submeter a controvérsia a um terceiro, seja um árbitro ou o sistema judiciário, que decidirá o caso de maneira final, substituindo-as.
Voto de Qualidade
Prevê a atribuição a um membro do conselho de administração ou da assembleia de sócios com um “voto de qualidade”, que geralmente é designado ao presidente (que pode ser um membro independente ou um cargo rotativo entre os próprios sócios, com o intuito de assegurar imparcialidade e equidade nas decisões) do conselho e/ou assembleia e torna-se decisivo na situação de empate ou desacordo entre os sócios
Essa função crucial possibilita a resolução imediata de situações em que as partes não conseguem alcançar um consenso, impedindo assim a paralisação das operações e garantindo que as decisões continuem a ser tomadas de maneira ininterrupta.
Cláusula Shotgun
Cláusulas Shotgun referem-se àquelas que estipulam que, ao se constatar um “gatilho” (como a ocorrência de um impasse societário), uma das partes tem o direito de adquirir a participação societária da outra parte. Esta última é obrigada a vender suas ações ou quotas para a parte ofertante, ou então comprar as ações ou quotas desta.
Ao retirar um dos sócios, o conflito de interesses, que se caracteriza pela pretensão resistida, é resolvido de maneira direta e eficaz. Isso porque nos casos em que a resolução amigável é inviável e o impasse societário é tão significativo a ponto de ameaçar a continuidade da sociedade e de suas operações, a saída de um dos sócios pode ser a solução mais eficiente e rápida.
Como a parte que aciona a cláusula pode eventualmente comprar ou vender a participação societária, há um incentivo para que se estabeleça um preço justo pelas ações ou quotas – o que promove resultados mais equitativos, sem os custos administrativos e a demora associados a outros métodos de resolução de conflitos societários.
Assim, a Cláusula Shotgun, em regra, possui o seguinte funcionamento:
1) Notificação: com a configuração do impasse, uma das partes envia uma notificação à outra para adquirir ou vender sua participação por um valor determinado. A parte que notificante apresenta as condições que considera viáveis para a concretização do acordo, concedendo um prazo para que a parte notificada decida se irá comprar a participação da notificante ou vender a sua, conforme as condições propostas; e
2) Resposta à Notificação: Por sua vez, a parte notificante terá a prerrogativa de escolher se deseja se retirar da sociedade, vendendo sua participação à parte ofertante, ou se prefere permanecer, adquirindo a participação da parte notificante.
É crucial que o acordo de sócios contemple a interpretação do silêncio por parte da notificada, bem como outras condições da notificação, como o prazo para resposta, o método de pagamento e a determinação do critério para a apuração de haveres, entre outras que as partes julguem pertinentes, levando em conta a natureza específica da relação entre elas.
Sabrina de Melo – Advogada do Departamento Consultivo no TM Associados, graduada em Direito pela Universidade Padre Anchieta (2022), inscrita na Ordem dos Advogados do Brasil, Secção de São Paulo (OAB/SP). Pós-Graduanda em Direito Civil pela PUC-MG.
Leonardo Theon de Moraes – Advogado, graduado em direito, com ênfase em direito empresarial, pela Universidade Presbiteriana Mackenzie (2012), inscrito na Ordem dos Advogados do Brasil, Seção São Paulo (OAB/SP) (2012). Pós- graduado e Especialista em Direito Empresarial pela Escola de Direito de São Paulo da Fundação Getúlio Vargas (2014), Mestre em Direito Político e Econômico pela Universidade Presbiteriana Mackenzie (2017), autor de livros e artigos, palestrante, professor na graduação, MBA e Educação Executiva na FIPECAFI, membro da Associação dos Advogados de São Paulo (AASP), membro do Comitê de Direito Empresarial e de Fusões e Aquisições da International Bar Association, Membro da Associação dos Advogados de São Paulo (AASP) e Presidente do Conselho Estadual de Assuntos de Direito Comercial da FEDERAMINAS. Sócio fundador da TM Associados. Sócio fundador do TM Associados.
[1] “A lei não excluirá da apreciação do Poder Judiciário lesão ou ameaça a direito”
An analysis of the methods of increase of share capital: concepts and applications.
Subscription of the share capital of which is essential for the formation and growth of a company, analyze the best means for increase of a situation.
Introduction
The subscription of capital is the starting point for the creation of the company, representing one of the first of the commitments made by its members in order to commence operations and to support the growth of your business. The ability of a firm to adjust its capital stock, by means of various methods to increase reflects their adaptability, and ambition to grow.
This article focuses on the key ways to increase the share capital by analyzing its practical applications, and the scenarios in which each type would be more appropriate. In this way, the main objective is to promote an understanding of the strategic value of social capital and empower the business owners and managers to make informed decisions, and which are in line with long-term goals of the company.
The concept of social capital
Social capital is the value of the home provided by the partners in the creation of the company, with the aim of facilitating the beginning of its activities, and to ensure the execution of their purpose. It can be made up of financial assets, whether material or immaterial, as long as it can be measured in money, as stated in art. 7 of the law 6,404/76.
It was established in the articles of association or by-laws, the social capital is not only a commitment of the partners, but it also serves as the legal guarantee in relation to third parties. After having been fully paid-up, evidence of the financial ability of the company to honour its obligations, the initial, creating credibility and trust in relationships, business, and law.
The act of compounding takes place in two steps to sign up and pay for shares. According to Coelho (2022): ‘The first is a measure of the amount of resources committed by the members, the company, under the heading’ capitalization, and the second one corresponds to the resources once they have been transferred to the corporate assets.’
In the simplest of terms, a subscription that symbolizes a pledge to the investment of the shareholders or stockholders, as the payment that represents the concrete realization of the investment in the company. That is, the subscription, the member agrees to contribute a certain amount to the company. When you make a full payment of such amount, he will complete the phase of creation.
It is important to highlight the distinction between social capital and net assets. The equity-refers to the collection of assets that the company owns. Already, the share capital represents the expression number, the currency, the value of the heritage that has been, or must be built-in to the company because of the contributions of the members.
In this context, it is important to note the analogy is made for a Grandson, and France, in chapter XV, ” Social Capital,’ in the work of the Treaty of Corporate Law, Vol. II, Ed. 2023 (2023):
‘To compare it with a glass dthe water explains the function of the glass shows you, at a moment in time (the end of each fiscal year), the capital and assets with values that are equal to, or will be, a result of the financial and without loss, and without profit; and if the water is overflowing from the glass, there is a profit; if the glass is not enough to fill it, there is a loss. Vivante compared to the capital stock of a container, the gauge of the spirit, and of the stockholders, to the grain that they can be overcome, the extent and in such cases, there will be a profit), whether or not the reach, in which case there will be a loss); and Garrigues, like a dam that holds back the water (and the assets), until they can overcome it, representing the net income which is of a distribution to the shareholders.’
Also, it is necessary to emphasize that, despite the fact that the capital to be established in the contract, or by statute, it is not immutable, and you can increase it or reduce it, as long as they meet the terms and requirements of applicable law. For example, the value of the capital stock cannot be changed after the establishment of the company is to meet the changing demands of strategy, it is an expansion, restructuring, as well as the adaptation to the circumstances of economic and market needs.
The structure of the share capital in limited liability companies, and anonymous
In this topic, we will explore the differences between a LTD company, limited, and the A/S – joint-stock company, especially in relation to the subscription, and the payment of the capital stock of each of these types of companies. Although the two share some characteristics, there are important differences in the composition and organisation of the share capital, which have a direct impact on the functioning and governance of each type of company.
In a limited partnership, as its name suggests, the liability of the members is limited to the value of its equity interests represented by shares, which, in turn, have a match in the capital. The concept of a quota, it is well-illustrated by me But hot Pepper, that is, describing the following:
‘Share it, then, a term which identifies the contribution of each and every one of the members, to the formation of a number of goods, and financial resources to what is called social capital. The sum of the arithmetic of the monetary expression of the shares of each and every one of the members, that corresponds to the value of the share capital of the company.'(Black PEPPER, 2023, p. 201).
All of the members, however, are jointly and severally liable for the payment of the share capital. The rule of limited liability of the shareholders in this company, it is excetuada if the value of the subscript is not a fully paid-up, in which case, the partner who did not, which was the full amount promised, this is referred to as the remisso, and you can be expelled from the society.
On the other hand, the S. A. joint stock company stands on a legal framework aimed at a profit, and in which the share capital is comprised of the shares representing the fractions of wealth and the control of the company. To the contrary, the limited partnerships in which the partners hold shares in the joint-stock company, the liability of the shareholders is limited to the value of the shares they have subscribed to or purchased. As stated Rabbit (2024): ‘social capital’ in this type of company is divided into units, which are represented by stock. Its members are called shareholders and they are liable for corporate obligations, up to the limit of what is yet to pay up the shares that they hold.’
This type of company may issue common stock, which will give the right to vote, and is preferred, which focused on the dividend, but they usually do not give the right to vote. The valuation of the shares reflected in the share capital as well as the perception of the profitability of the company in the market. The stock, which is reflected in the share capital in the joint-stock companies, are also used as a mechanism to differentiate between the partners, and managing the rights and obligations of each of them.
Another feature of the limited partnership and to the capital stock with respect to the formalities in the proof. While on LTD. is provided in the report of the evaluation of the property, whether material or immaterial, who make up the company’s capital, by the indication of its value to the contract, the a/S to Thes of this document, it is a must. Here, it was for the subscription in cash, there is no need for the presentation of the report of the trial, regardless of the type of company.
So, for example, in the formation of the LTD with a capital consisting of real property, simply describe them in the articles of association, by assigning them values. After the subscription, you shall be carried out on the update of the registration to the event, so that the ownership of those goods is to be transferred from the partner to the LTD. this is called the conference of the goods. For the S/S to Thes, and the process is the same, but with the by-laws, which will also be described, and the properties and their values should be given in the evaluation report.
In addition to this, the possibility of an increase and a decrease in social capital, limited liability company, may increase or reduce its share capital, as provided for in art. 1.081 at 1.084 of the CC, as long as all of the shares to be paid in full before any changes are made.
With the increase of the share capital of which is carried out by means of a simple modification of the articles of association, which, according to the stresses and Pepper (to 2023) p. 201), in order to increase the share capital, it is essential that all of the shares subscribed shall be paid in full, is given to the shareholders of the right of pre-emption in the subscription of the new shares, for a maximum period of 30 days after the approval of an increase in the assembly meeting of the company. Already, the reduction of the share capital of which is a complex and bureaucratic process, in an attempt to preserve the rights of the creditors of the company, after all, the capital serves as the legal guarantee in relation to third parties.
In joint-stock companies, and the increase of capital, it also is ok, but it’s not so simple, its execution as it is in the limited partnership. Here, the rise in support of the issuance of the new shares, subject to the prior meeting of shareholders, which will result in a change in the by-laws, the preparation of a subscription, and effective, with the book-keeping of the books of the company, the adjustment of the shares of the partners, and/or the admission of a new partner.
Modes of increase of share capital
As discussed throughout the article, while social capital is defined in the contract, or by statute, it is not set in stone. Alfredo Lamy Filho, and José luis Bulhões Pedreira, discuss all the ways for expansion in the capital and, by categorizing the transactions of the unilateral and bilateral arrangements, as outlined in his work, the Law of Companies (2 in. ed. Rio de Janeiro: Forense, 2017). Let’s see:
‘The increase of capital, it is a legal transaction that modifies the contract for the company, this could be one-sided (in the capitalization of profits or reserves), or bilateral, when what it means is the manifestation of the will of the company, which decides to create the actions, and the people who get.
They are the modalities of the deal bilaterally: (a) the purchase of treasury shares, and (b) the conversion into shares of common or of the parties to the beneficiary; and (c) the exercise of the warrants, and the exercise of an option to purchase shares of stock.’ (The SON, the QUARRY, 2017, p. 997).
The distinction between the types of the increase in the capital – one-way two – way- it is important to understand the various opportunities for the expansion and consolidation of the share capital of the company. In this chapter, we will discuss the concepts and methods of the main ways of increasing the capital stock.
Increase in the subscription of new shares
With the increase of the share capital, by the subscription of the new shares is an alternative strategy for companies that want to inject capital into its own, without resorting to external borrowing. In this case, our partners are responsible for the increase in the turning of the values of the investor in the subscription of the shares.
This kind of increase can also be a strategy to attract foreign investment. In this case, it is common that only a portion of these investments are to be converted to equity, in which case the other party as a capital gain.
With the increase of the share capital are subject to capital gain makes it possible to attract foreign investment, and the current members are not being fully diluted earnings per share. This is because, if you do not have a reservation on the part of the values, such as goodwill, all of the money spent by a third party, would be converted into the share capital increase, and the current members had their levels of interest in, fully diluted earnings per share. For this reason, it is often the operations of the subscription of the new shares arising from the capture of foreign investment are accompanied by the reservation of a certain part of the capital stock as a capital gain, so that an investor partner to join in the company with only a percentage of the interest he promised during the negotiations.
Also the increase of the share capital reserve capital gain, it is important to note its effect, deferred tax assets, since different depending on the type of company. In limited partnerships, the capital gain is taxable, and, as such, it can be found. In joint-stock companies, the capital gain is not subject to tax (at least up to this point, which makes popular, this type of company.
The amounts set aside as capital gain, however, is expected to be rolled out in the overvaluation of the stock.
This is the kind of expansion of capital, is not only a chance to finance, but it is also a strategy of participatory governance, and the protection against dilution. The second Son (2023), the process involves three elements: (i) the payment of the share capital prior to 3/4 (three quarters), at a minimum, (ii) the approval by a majority of 75% of the shareholders; and (iii) the exercise of the right of the screen. It also contributes to the stability of the corporate, and provides safety to the investor, who will remain on the company, with the same percentage, and the level of control.
The main benefit of a capital increase through a subscription with the ability to obtain the resources to go into debt, strengthening the company’s financial and improving its image in the market. However, it should be treated as such. If the shareholder or shareholders do not exercise their right to purchase, at the risk of facing a dilution of the stake, which would weaken their influence in the decision making process. Instead, these owners may choose to sell their subscription rights, they were to protect the economic value of participation, it means renouncing part of the control over the target company. (‘s grandson, 2023).
The increase in terms of market capitalisation of profits or reserves
The capitalization of profits or reserves, makes it possible for a company to convert a portion of their retained earnings, or to make a reservation at the capital, without the need to raise new funds from outside.
This allows you to increase the share capital with the built-in features, leading to the issuance of the new shares to the shareholders of the increase in the value of the existing shares, in proportion to the number of shares that you already own (law 6,404/1976, art. 169). Thus, the practice of preserving the representation of the shareholders, thus avoiding the dilution of their equity, and ensuring the security and stability of the investment in the company.
Is worth to remark that the accumulation of reserves may change in the par value of the shares or to result in the distribution of new shares to the shareholders ‘ meeting. In companies where the shares have no nominal value, the capitalization can be done without changing the total number of shares. Rezende (2023, p. 87).
For the Rabbit (2019), in this way the increase of the share capital without the capture of new knowledge, since it was only a correction of the internal resources of the company. In teaching, it is referred to as an ‘increase in free of social capital’, as it does not impact the shareholders ‘ equity of the company. In this context, Bunny quotes Galgano (1988, p. 368-369): ‘When you operate in the capitalization of profits or reserves, the company issues new shares to be distributed to them in proportion as between the shareholders or to keep the same number, in which case it will be the par value, if any, that is raised up’.
So, in this kind of case is it beneficial, as it enhances the stability of equity to prevent the spread of the investments, strengthening the company’s reputation as a self-sustainable. However, this approach may have limitations because of the dependence of the accumulated profits and reserves, it makes the increase of the capital of which is more limited in the times of the profitability is low or when the funds will be used for the purposes of operating, such as innovation and expansion.
Increase in inflation
The inflation of the share capital of which is a procedure that is used to grind the face value of the financial assets of a company, due to variations in inflation. This is important in order to preserve the power of social capital in periods of high inflation. In this way the increase of the share capital of which is regulated under the art. 167 of the corporations law (the law 6.404/76), which allows for the capitalization of capital reserve arising on the restatement of the paid-up capital, subject to the approval of the ordinary shareholders ‘ meeting.
This practice has gained a special importance in the economy inflation, because of what happened in Brazil, prior to the stabilization brought about by a real, or the law 9.249/95. According to Carvalho (2018), the inflation in that time period has reached such a magnitude that the monetary correction is no longer an option for shareholders, making it a requirement that is left to the assembly, only the type-approval of a value that is calculated by the government. The main purpose of this adjustment is to preserve the capital of the company at their actual value, thus protecting the equity of the investor against the dilution of value to you.
Following the provisions of the article mentioned above, the monetary adjustment is applied each year based on the balance sheet as of the closing of the fiscal year, creating a capital reserve which can be built-in in the capital. This embedding is usually does not involve the issuance of new shares, which allows them to preserve the aspect ratio of the participation of the shareholders ‘ meeting.
In those cases in which the shares have a par value, the amount is adjusted according to inflation. In private companies, the shares of a nominal value, and the shares, without par value, the adjustment is made separately for the shares of a nominal value, thus ensuring the maintenance of the principle of proportionality and the rights of the owners.
To maintain the economic value of the real capital stock, upgrading to the monetary help to preserve the attractiveness of the company to investors, especially in times of economic uncertainty. However, as noted by Detailing it, the company relies on an increase of share capital in order to face the difficulties with time-sensitive. As a rule, causes an increase in the capital when it is proposed to effectively extend the range of your business’ (cited in Carvalho, 2018).
Final thoughts
In conclusion, the increase of the share capital of which is a strategic tool which allows the firm to adjust its financial structure in response to the demands of the marketplace and your goals, expansion and growth. The choice of modality is the most appropriate depends on the specific goals of the organization is to facilitate the growth, the strengthening of the capital base, or to lure new investors. By subscribing, capitalization, profits, reserves, or for any other alternative, the company can choose the method that best aligns with their needs and to strengthen the equity or fund-raising. Thus, the financial structure is intended to support the growth and competitiveness, in order to ensure its strong position in the market.
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https://www.migalhas.com.br/depeso/419849/analise-da-modalidade-de-aumento-capital-social-conceito-e-aplicacao
Correct: the Purchase and sale of the establishment of the business
The contract of lease shall regulate the sale of the properties, business, thus ensuring the continuity of the business. It requires the formalities, pay attention to the debt, and the tax and succession duties.
I. Introduction
The contract for the lease, which is regulated by art. 1.142 at 1.149 CC (lei 10.406/02-is the sale of a commercial establishment such as the unit that is organized tangible and intangible assets, to the exercise of an economic activity. The transaction includes assets such as equipment, goods, trademarks, patents, and contracts relating to the company, as defined by Terry Requião (2003). The securities shall be drawn up in writing and registered with the registry of commerce, as well as published to ensure its validity and effectiveness, to any third party.
The specific nature of the good is its purpose in the economy: it’s not just about the sale of the goods, but the transmission of the continuity of the business, maintaining the customer base and the potential for profit. In this sense, the doctrine that states that the lease does not cause loss of the business entity, but rather passes it to its exploration of the other party to the right.
II. the Nature of the legal
From a legal point of view, good has the nature of the contract-typical, two-way, proves to be costly, switching, and translativo. It is considered to be a contract of intuitu personae, in some aspects, especially the requirement of consent of the interested third parties, such as creditors.
The essential elements of the contract of the lease include the following: the object of the establishment of the business), the value (the amount of money or its equivalent), with the consent of the parties, and to comply with legal requirements. According to Modesto Carvalhosa (2020), the legal status of a lease that is closely related to the concept of universalidades, since the establishment, the business is treated as a whole unit, which the disposal occurs in a block.
III. the Difference between the sale of a commercial establishment and a company’s interest
Even though the lease and the sale of equity interests to be able to generate a similar effect on the structure of the business, they differ in substance and scope. The good, the subject matter of the contract is the establishment of the enterprise, as in the sale of a stake in your company, with the object, that is, the ownership of the shares, or the shares that comprise the share capital.
In the first case, it is a transfer of the assets of the components for the establishment of the business of the corporation, allowing you to explore directly with the business, by then, acquired the facility. In the second case, the executive board may or may not be transferable, depending on the aspect ratio of the shares, or the shares disposed of.
The purchase and sale of the establishment of the enterprise, that is, the contract of lease, the ownership of the legal entity (whether the seller or the buyer) does not change, what changes is the owner of the property. In addition, in the case of a full assignment of the shares or the shares of the company – the transfer of ownership of the corporate – acquisition of the shares, or the shares, also, wield, control, and to be understood in the premises, it is not necessary to perform a contract for the lease – the business is the part of the stockholders of the corporation.
Fabio Konder Comparato (2019) points out that the good will, the emphasis is on the continuity of the project, whereas in a sale the corporate level, the focus is on the changes in the composition of the membership.
Good
Sale security interest
IV. corporate and business succession
From the point of view of the corporation, and the securities and may lead to changes in the organizational structure, especially when it involves limited companies or public corporations. In these situations, you might have to watch out for in the articles of association or the regulations to verify that the requirement has been approved by the shareholders. As pointed out by Arnoldo Wald (2022), and the securities will not cause loss of legal personality of a company, but to transform the ownership of the property.
For the good cause of the succession of the purchaser in terms of obligations and contracts, linked to the establishment of the enterprise, according to the law and of the contract. According to the art. 1.146 on the DC, you will have to answer for the debt, the earlier of the sale, unless there is a discharge on the part of the conveyor, or if the creditor has expressly consented to the exclusion of their own responsibility.
The trim (the ability to generate a profit, income, assets, and liabilities recognised in the balance sheet) of the facility shall be submitted by the employer to produce, and this is an obligation under the contract of lease, presenting factual information, on pain of termination of the contract and the compensation corresponding to the customer.
It is important, therefore, to conduct a due diligence, in advance, before it enters into the operation of the lease, taking into account the risk of the liabilities of the various that you may provide, to be civil, tax, labor, among others.
– The liability of the trespassário/purchaser are limited to the passive declared/recorded on the balance sheet. The produce jointly, by a one-year term decadencial, the debts due to and by the assumed prior to the lease, which is a win and a year after the maturity date).
In accordance with art. 1,148 with the CC, in connection with the transfer of the facility, in the case of contracts relating to it, are a sub-rogados to you. This one happens to be a part of the relationship, in the place of the produce, except for the obligation of a contract, it is the personal obligation is extremely typical for the person or entity that must comply with it, or not exist at the forecast for the termination for a just cause, the opportunities for which the third party may terminate the contract at any time within (decadencial) for 90 days from the date of the publication of the transfer, except in the case of these cases, then, the liability of the selling.
How much more important it is to grapple with the repercussions of labor for the good. Compulsando the art. 448 CLT, a change in ownership for the change in ownership, corporate), or in the legal framework, such as the transfer of, for example, to set up) do not affect the terms of employment. It is assumed, therefore, that the good will is to transfer control of the contract for the work, and all of the labor obligations of the purchaser of the property.
It should be emphasized that the labor obligations are limited to the ones of the facility that you have purchased. As a result, in the event of being made good to the establishment of a subsidiary of the company to produce, it is necessary to be clear whether a particular employee is linked to the establishment of a head office or a branch office.
Y – for Production of the purposes of the lease to any third party
So that’s the good effect against third parties, it is essential to comply with the requirements as to form. The art. 1.144 CC requires that the registration of the agreement on the public record of the business market and its publication in the official.
If you do not give publicity to the agreement will be valid and shall take effect inter partes, but you will not be able to rely on a third-party. These formalities are designed to protect the creditors, employees and other stakeholders, ensuring the transparency and publicity of operation. The failure to comply with these requirements could lead to the ineffectiveness of the contract, thereby compromising its validity to any third party, and allowing for the questions of the court.
If the conveyor does not have equity/assets are sufficient to pay for the liabilities relating to the facility is sold, the effectiveness of the agreement will be subject to the payment of all the creditors, or if the consent/approval of the transfer of intelligence to the art. 1.145 of the civil code).
As a result, in the acts of the transaction shall be published in the official media, giving it the beginning of the term, decadencial to the opposition of the creditors ‘ claims. During this time, the lenders will be able to resist or consent, express or implied (default configures the agreement of an implied – do not occur in the opposition after the last of the time). If a creditor objects to it, or some, of the effectiveness of the agreement in relation to third parties takes place only after the payment of the account (s).
In the case of a party to produce, possess the assets/funds to the creditors, it is only given to the science, without the need for approval.
If identified as a fraud, the transaction may be considered to be ineffective or, alternatively, as an act of bankruptcy. It is, in the latter case, the hypothesis of a petition in bankruptcy by its creditors, according to the art. 94), III (c), and (art. 19 and I SAW the law 11.101/05.
From the time of the publication of the lease, and the lenders shall comply with its obligations under directly with the customer, unless it in good faith, that the creditor has to prove it), it has failed to fulfil its obligations, with the conveyor (art. 1.149 CC).
In respect of the application, after the sale of the establishment of the business, the selling may not be able to compete with the buyer in a five-period of the sale, unless the contract is for the lease provide for a term different (art. 1.147 of the civil code).
Rent/lease, and use the establishment of the business
It should be emphasized that, in both the rental/lease, and in the enjoyment, there are implications related to the exploration and exploitation of entrepreneurial activity at the part of the tenant. In the rental or leasing of the art. 1.144 of the CC provides that a legal entity, the landlord may not be able to use the same business for as long as the contract, so as to avoid competition, which could divert the client or to compromise the continuity of the business by the tenant.
In the same way, in the enjoyment of the establishment of the enterprise, and the art. 1,393 new CC that prevents the naked owner to compete with the beneficial owner in the operation of the activity, the object of the contract, in good faith, the contract, and the social function of the company. These provisions reinforce the principle of the protection of the continuity of the business, one of the main pillars of the securities and, thus ensuring the uniqueness, in the exercise of the activity of the enterprise for the period stipulated in the contract.
VI. the tax
The operation of the securities and raises a number of implications to the tax. You may want to focus on the due when the transfer of real estate that are included in the facility, there is also the possibility of a tax for the corporate income TAX on capital gains earned by selling. The classification of the tax the transferred assets, such as stocks, and intangible assets, although it may affect the basis for the calculation of the PIS and COFINS taxes.
On the other hand, do not form part of the VAT, or early childhood intervention in the conclusion of the contract of lease. If there is a tax credit towards the RFB, they will be kept in the establishment of object of a lease, and they will be transferred together with the right of establishment and used by you as much as possible permitted by law.
In addition to this, the estate tax provided for in art. 133 CTN size (law of 5.172/66 requires the purchaser to liability for taxes, owed by the conveyor, except in the case of preliminary authorization from the treasury for download at no charge. According to Hugo de Brito Machado (2021), it is essential that the parties will carry out a due diligence, tax, before concluding the lease, in order to avoid hidden liabilities.
If the selling is not over and explore the business, the liability of the buyer’s total. On the contrary, the continuity of the produce of the holding of the same, of business or, in the other branch, industrial and commercial, to the respondent, the purchaser, a subsidiary of the produce for the accounts payable, deferred tax assets, for a period of six months from the date of the sale, or the date on which it was carried out in the lease.
VII. Conclusion
The lease is a legal institution is of great relevance to the commercial law, allowing for the continuation of the economic activity without a break. Regulation of the CC provides legal certainty for the parties involved and the protection of the rights of third parties, such as creditors, employees and the internal revenue service.
In spite of its potential as a tool of the corporate reorganization, the lease requires the attention of the legal formalities to tax issues, and the succession of rights and obligations. Therefore, it is critical that business owners and operators in the law, to understand its characteristics, while ensuring efficient and proper operation.
BRAZIL. The Civil Code. Lei nº 10.406, de 10 de janeiro de 2002. Brasília: presidência da República. Available at: . Available at: [accessed 17 nov. 2024.
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https://www.migalhas.com.br/depeso/421035/trespasse-compra-e-venda-de-estabelecimento-empresarial
1 year after law 13.792/2019: what has changed?
When the measure was approved last year, the changes generated diverse opinions from jurists and lawyers specialized in the area. But what has actually changed?
It has been more than a year since the enactment of law 13.792/2019 that amended the articles of the Civil Code referring to two topics of corporate law:
Change of quorum in limited companies; and
Amendment of the rule of exclusion of a partner for serious misconduct in a limited company
According to the Explanatory Memorandum of the legislative process of the highlighted law, the objective was to simplify the procedures concerning limited companies, which are the type of corporate most used in Brazil.[1]
As an example, in the Junta Comercial do Estado do Rio de Janeiro – JUCERJA, from January to August 2019, 12,307 sociedades limitadas (LTDA), 11,413 empresas individuais de responsabilidade limitada (EIRELI) were incorporated against only 191 sociedades anônimas (sa).
Having overcome such introductory questions, we turn to the analysis of the amendments separately:
Amendment of the quorum for deliberation in limited liability companies
§ 1 of Article 1.063 of the Civil Code provided for a quorum of 2/3 (two thirds) of the share capital to effect the dismissal of the partner who was appointed administrator in the articles of incorporation. This quorum, which represented the qualified majority, was different from the standard rule of dismissal of directors, which establishes the need for votes holding more than 50% (fifty percent) of the share capital.
In the new legal framework presented, the need for the aforementioned quorum (2/3) previously required in the cases of limited companies was removed. Under the new law, to remove a partner appointed administrator in the social contract itself, only the vote of the majority of the share capital is required
See the comparative table:
Change in the procedure for the exclusion of a partner for serious misconduct in a limited company
The only § of Article 1.085 of the Civil Code that deals with the procedure of extrajudicial exclusion of the partner accused of committing serious misconduct, also underwent changes, removing the exception previously in force with respect to limited companies that have only two partners.
Now, the new law establishes the need to hold a meeting or assembly of partners to determine the exclusion of a partner in a society that has only two partners (article 1.085, sole§, of the Civil Code).
Apparently the change seems harmless, however, it generates important legal consequences for companies composed of two partners. According to recent data from Fundação Getúlio Vargas (FGV), these correspond to 85.70% of the total Limited Companies in Brazil.[2]
The intention of the legislator was to facilitate the procedure by exempting companies composed of two partners from formal and expensive acts – removing bureaucracy–, allowing the majority partner to exclude the minority from the board, by simply changing the social contact and presenting the other requirements that article 1.085 lists.
See the comparative table:
From our point of view, it is still too early to say the effective application of the Institute. Although the law values the principle of speed, it is risky from the perspective of the minority partner, who now has no opportunity to challenge the exclusion decision in the Assembly, leaving its defense only by judicial means.
Rafael De Sordi Barbosa Martins.
Attorney at TM Associates. Postgraduate in Business Law at FGV-LAW.
Leonardo Theon de Morais.
Founding partner at TM Associados. Master in political and Economic Law from Universidade Presbiteriana Mackenzie.
[2] Radiografia das Sociedades Limitadas, FGV: https://direitosp.fgv.br/sites/direitosp.fgv.br/files/arquivos/anexos/radiografia_das_ltdas_v5.pdf