Summary
Excerpt
Table Of Contents
- Cover
- Title
- Copyright
- About the authors
- About the book
- This eBook can be cited
- Table of Contents
- Introduction
- 1 Introduction to Brazilian Company Law
- 2 The Business Doctrine in General
- 3 Objective Company Law
- 4 Subjective Company Law
- 5 Bankrupcty and Recovery of Companies under Brazilian Law
- About the Authors
Introduction
In recent years, Brazil has been one of the countries that have introduced maximum number of innovations in their legal system to govern its business activities in both the developing and developed worlds. Indeed, the modernization of Brazilian Law, in particular its Economic Law, has created conditions that warranted unprecedented changes in trade development and business activities in Brazil.
Over a relatively short duration of two centuries of its existence, the Brazilian Company Law, which was originally based on the Roman legal system, later changed its fundamental character to follow the French legal system and eventually settled down for a legal system that had features similar to the Italian legal system. Indeed, its French approach required the Brazilian legal system to classify the nature of country’s economic activities into two groups: civil and commercial. In the latter, the approach to company law is based on the theory of acts of commerce as an instrument for objectifying the legal approach to mercantile activity. In the colonial period itself, Brazil was already one of the most attractive places for its development of economic activities, and it was in this context that the development of commercial legislation to respond to the economic vitality of Brazil at that time was urgent, and in order to achieve such a goal the government ←1 | 2→had to adopt an approach based on the French Code of Commerce whose provisions were marked by the theory of acts of commerce.
Later, already in the 20th century, the Brazilian legislators would embrace the Italian approach, which apparently seeks the unification of the Private Economic Law through the development of the theory of the company to meet the requirements of the so-called superior capitalism. Indeed, with the approval of the Civil Code of 2002, the Brazilian legislators definitively adopted the theory of the company and incorporated the Italian model based on the proven discipline of economic activity.
However, the history of Brazilian Company Law is not only replete with changes in the legal approach to economic activities of a private nature, but also and, mainly, illustrated the innovations that the Brazilian legislators have brought in the country’s legal framework, in their efforts to try and keep up with the dynamics of business activity and offer the best legal solutions for various issues in trade and commerce. It is this quest to modernize and, above all, bring innovations in Brazilian Company Law that have inspired many countries, particularly the developing ones, to adopt the Brazilian model of trade and commerce legal system in regulating their legal system to monitor economic and/or trade and commerce activities.
This book highlights the innovative options that the Brazilian legislators have developed in the bid to modernize the legal framework governing the conduct of commercial activities and, at the same time, broaden the horizons on the perception and knowledge of the legal regime governing business in Brazil. The book not only aims to enrich the debate on Brazilian Company Law, and the Corporate Law in general, but can also serve as a source of valuable information on the procedures implemented by the Brazil legislators to govern the conduct of private economic activities in Brazil.
The book is of great importance for academics in the Portuguese-speaking world and will strengthen their efforts in studying and teaching modern Brazilian Company Law, as it discusses key theories and legal features of the Brazilian Company Law. The book it is intended to serve as a reliable source of knowledge for scholars interested in Brazilian Company Law as well as company law in general, as the book can also be used for comparative legal studies. As a matter of fact, this book offers a detailed analysis of the theories and doctrinal debates on Brazilian Company Law by bringing together and presenting contributions from prominent Brazilian Company Law scholars. The book offers a comprehensive analysis and discussion on the legal options adopted by Brazilian legislators in their quest to modernize the domestic business environment in Brazil.
←2 | 3→The book provides a comprehensive study of the Brazilian Company Law, and the five chapters together present useful discussion on several key topics in this context, with each of them separately addressing one specific topic: Chapter 1, “General Introduction to Brazilian Company Law,” seeks to present the definition, characterization, and the historical evolution of the legal discipline in Brazil and reviews the various stages that the process of construction and modernization of the Brazil’s Company Law through, as well as the main features of the company law. Chapter 2, “General Company Law Doctrine,” provides an overview of the theory of the acts of commerce as an object of commercial law as well as the classifications of the acts of commerce. Chapter 3, “Objective Perspective of the Company Law,” discusses the commercial enterprise, also referred to as “the company,” and the commercial premises, also referred to as the “commercial establishment,” in addition to exploring the legal nature of these two legal entities, that is, commercial enterprise and commercial establishment. Chapter 4 presents a discussion on the second dimension or perspective of company law and thus deals with the subjective company law, where the focus is on the person who carries out commercial or business activities—that is, the businessperson or commercial entrepreneur, who could either an individual running the business or running the business organization which is a collective of people and a legal entity. This chapter discusses main aspects of business or commercial subjects, such as the requirements for the acquisition of the status of businessperson in Brazil and special obligations imposed on the businessperson. Here, special attention is given to commercial companies, which are regarded as the “collective businessperson” under the Brazilian legal system. Finally, Chapter 5 discusses the laws and regulations in relation to bankruptcy or recovery of commercial entities in Brazil.
As one can see, in terms of content, the book integrates in one single volume the most relevant and important topics that help to comprehensively understand the Brazilian Company Law in its substantive dimensions and presents them in clear and simple language to make it easy for the reader to read and understand the contents presented.
1 Introduction to Brazilian Company Law
1. General Concept of Company Law
Defining Company Law has always proved to be a difficult task for company law scholars, first because it is a discipline that operates in a multifaceted environment where the alignment of different factors that integrate it with the normal course of commerce is not always possible, despite its power to influence the definition of norms that guide commercial activity.1 In fact, over the years there have emerged differences in how the concept of company law came to be defined given the myriad views and theories proposed in relation to the subject of company law.
On the other hand, the terminology associated with defining the company law is itself presented as a determinant of the concept; that is, the designation of the discipline as commercial law or company law determines how we understand the definition of the term company law. In the present study, we prefer to adopt the terminology of company law, in order to respond to the new trends of this legal discipline, which has its focus on the company and no longer on the trader or in the acts of trade; this doesn’t mean Commercial Law has disappeared. ←5 | 6→In fact, it is worth to highlight here Soares Hentz’s words—“commercial law does not disappear with the new [Civil] Code, but is reborn as Company Law.”2
According to Fazzio Júnior, there is almost a uniform orientation in the formulation of the tenets comprising the company law, given that one cannot ignore the existence of an organized professional activity of an economic nature aimed at making products and services available to the consumer.3 Thus, continues Fazzio Júnior, in the Brazilian law, company law should be understood as the positive normative complex that focuses on the legal relations derived from the exercise of business activity [that is] it disciplines the solution of disputes between entrepreneurs, as well as related matters to the organized economic activity of production and circulation of goods (…).4
In turn, Fábio Ulhoa Coelho understands that Commercial Law, as a traditional designation of the mercantile legal discipline, has as its subject the socially structured means of overcoming conflicts of interest among those engaged in the economic activities of production or circulation of goods or services we all need to live.5
A brief analysis of the above definitions reveals a common aspect in addition to its economic content. Indeed, both authors present Business Law in a conciliatory dimension, that is, as an instrument for settlement of disputes between entrepreneurs. We believe that such a consideration can reduce the essence of company law, which, in general, as both authors acknowledge, is the regulation of business activity, that is, the “Law that regulates the relations arising from commercial activities.”6 Indeed, business activity cannot only be seen as conflicting; it has a dimension that goes beyond that. In fact, conflicts between entrepreneurs arise as a result of the exercise of trade; they are not the origin of trade. On the other hand, Fazzio Júnior’s consideration of Business Law being a positive normative complex ignores not only the origins of Business Law but also one of its main characteristics—the informalism—as we will see below. As a matter of fact, not all the rules that make up the company law’s normative framework are positive.
Ricardo Negrão looks at the various moments the legal discipline has gone through and to safeguard its origins, concludes that from the point of view of terminology the designation “Company Law” is preferable, as it encompasses the ←6 | 7→traditional aspects of Commercial Law and the new institutes of the entrepreneur and will be “the branch of private law that regulates the activity of the former trader and the modern entrepreneur, as well as their legal relations, established during the professional exercise of commercial and business activities.”7
Carvalho Mendonça looked at subjectivist and objectivist approaches and sought to reconcile them in a single concept and conceived Commercial Law as “the legal discipline that regulates acts of commerce and, at the same time, the rights and obligations of the people who exercise them professionally and their helpers.”8
In a more modern approach, Fran Martins says that Commercial Law is a “set of legal rules that regulate the activities of companies and commercial entrepreneurs, as well as acts considered commercial, even if these acts are not related to the companies’ activities.”9
In consideration of the foregoing discussion as well as in line with the idea of Fran Martins, we accept the thesis that company law will be a branch of private law constituted by a set of rules that regulate business activity; that is, it takes care of not only the subjects that carry out the commerce but also the relations that they establish in the exercise of the commerce.
2. Origin and Historical Evolution of Brazilian Company Law
Finding an exact moment in which company law would have arisen is not an easy activity, and differences continue to prevail even in contemporary times between scholars. Indeed, some authors refer to the Middle Ages as the period in which the company law emerged. Rubens Requião states categorically that, as a result of the demands of trade, Commercial Law had emerged in the Middle Ages,10 but others argue that the same thing happened with the emergence of trade, that is, with humanization, because since the beginning, men have always felt the need to establish commercial exchanges, although at that time there was no universal means of exchange and that using barter the rules to regulate this activity would soon have emerged; this explains the rules of trade regulation found in Mesopotamia, in the ancient Egypt; in Phoenicia in Palestine; and in the ancient Greece.11 Other ←7 | 8→scholars still ascribe the emergence of company law to the period after the Middle Ages, basing that claim on the economic ideas and their results in the Western world during that period.12 Among the defenders of this idea stands out Tullio Escarelli, who states that
“It is in the civilization of the communes that Commercial Law begins to assert itself in opposition to feudal civilization, but also distinguishing itself from common Roman law, which, almost simultaneously, is constituted and imposed. Commercial law appears, therefore, as a historical phenomenon, whose origin is linked to the affirmation of a bourgeois and urban civilization, in which a new entrepreneurial spirit and a new business organization develop. This new civilization appears, precisely, in the Italian communes.”13
Details
- Pages
- VI, 330
- Publication Year
- 2023
- ISBN (PDF)
- 9781433199059
- ISBN (ePUB)
- 9781433199066
- ISBN (Hardcover)
- 9781433197697
- DOI
- 10.3726/b20098
- Language
- English
- Publication date
- 2023 (May)
- Keywords
- Company Recovery Brazilian Company Law Brazil Business Law Business Activity Company Law Company Corporate Law Commercial Enterprise Insolvency commercial entrepreneur
- Published
- New York, Bern, Berlin, Bruxelles, Oxford, Wien, 2023. VI, 330 pp.