The jurisprudence of the TJSP and the passive legitimacy in the partial dissolution of companies

the partial dissolution of society, represented by the breach of the bond between one or more partners and society, may occur in court , pursuant to art. 599 of the Code of Civil Procedure, in hypotheses provided for by law.

According to current legislation, the passive pole of demand must be composed of all partners and society itself, considering that the decision to dissolution can impact the legal sphere of all its members, and it is necessary that that be aware of the lawsuit and also that they have adequate opportunity for manifestation in the file about the request. Diverse question concerns the responsibility of the remaining partners for the payment of the assets determined in the lawsuit, and whether or not it would be necessary to disregard the legal personality previously to reach its assets.

The 2nd Reserved Chamber of Business Law of the São Paulo Court of Justice, in the judgment of an appeal filed by a remaining partner, based on its passive illegitimacy in the claim, understood that it would be necessary to promote personality disregard of the company, prior to the reach of the heritage of the partners.

On the other hand, the 1st reserved Chamber of Business Law of the TJSP has been deciding to disregard the disregard of the legal personality to decide the accountability of the remaining partner, because, in accordance with the vote, according to the vote Procedural rules governing the special procedure of the partial dissolution action of societies, the remaining partners are, since the beginning of the process process, included in the procedural relationship.

However, the fact is that there is no legal provision determining the responsibility of remaining members for the payment of the partner's assets without previously disregarding the legal personality of the company, nor peaceful understanding in the jurisprudence about the It is relevant, therefore, to remain up to date regarding the understanding of the courts and rely on legal advice specialized in the matter, and there is an interest in promoting the corporate dissolution of an organization.