A (des)necessidade do conceito de capital social no direito societário brasileiro: uma análise à luz do direito norte-americano e europeu
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Data
2015-06
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Cavalli, Cássio
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The paper analyzes the topic of legal capital in the Brazilian corporate law. Its objective is to demonstrate, from a legal point of view, the costs and benefits that the institute promotes. Despite being seen as a classic and essential concept for companies with limited liability in Brazil, this institute has been increasingly criticized in the sense it does not play its traditional role (organization, production, and protection of fixed claimants) effectively nowadays. In this context, modern company law has evolved in the sense of questioning the effectiveness of its institutes. The analysis proposed here of the legal capital follows this reasoning. To assist in the interpretation of the institute in Brazil, we studied the literature and legislations of European and American systems, where the issue has been widely debated. The treatment given by the Revised Model Business Corporation Act, the North American model law, and the Second Directive of the Capital of the European Union will be compared with the treatment of the Brazilian Corporations Law for the legal capital. Finally, we identified some particularities of the capital institute in relation to foreign systems, showing that a possible abolition of the concept of social capital in Brazil possess features that are not present in Europe and the United States. In this context, the legal costs associated with a possible change of the capital regime in the Brazilian legal system will be identified.