Direito Civil - Aula #17 - Constituição da Pessoa Jurídica (É isso!)

Summary

This video discusses the formation of a legal entity, focusing on the essential steps in its creation. It explains the concept of the 'act constitutive,' the foundational document that establishes a legal entity, whether as a social contract, statute, or declaration. The process includes registering the act with one of three official bodies: the commercial registry, the civil registry, or the OAB section. The video also covers specific cases where government authorization is required, like for strategic industries, and highlights the timeline for registration, with a three-year window to contest any irregularities in the process.

Takeaways

• 😀 A legal entity (pessoa jurídica) comes into existence through two main stages: the constitution act and its registration.
• 📑 The constitution act (ato constitutivo) can be called different names depending on the entity type: *contrato social* for companies, *estatuto* for cooperatives, and *declaração* for individual entrepreneurs.
• 📅 Once the constitution act is drafted, it must be registered within 30 days. If registered on time, the registration date can retroactively apply to the constitution act.
• 📍 The registration process can take place at three different organs: the Commercial Registry (Junta Comercial), Civil Registry of Legal Entities (Cartório de Registro de Pessoas Jurídicas), or OAB Section (for law firms).
• 🔑 The constitution act must include key details: entity name, headquarters, purpose, management rules, and members' rights and responsibilities.
• 🛑 Some industries require additional authorization before registration. These include high-security sectors such as aerospace, media, and arms manufacturing.
• 📜 For certain activities, additional executive authorization (e.g., concession or permission) is needed before completing the entity’s registration.
• ⏳ The entity’s creation can be annulled within 3 years if defects or fraud in the signing process are proven, based on the registration's public announcement.
• 📝 The constitution act is a legal document that formally creates the entity, establishing it within the legal and business framework.
• 📈 The constitution act must be followed by proper publication in official records to finalize the registration and confirm the entity's existence in the public sphere.
• ⚖️ After registration, the legal entity is recognized as existing in the legal world, even though it has no physical form, being an abstract legal construct.

Q & A

What is the Ato Constitutivo (Constitutive Act) in the process of creating a legal entity?

The Ato Constitutivo is the foundational document that officially establishes a legal entity. It includes key information such as the entity's name, headquarters, purpose, capital, management structure, and the details of the founders or members. It may take different forms, such as a Contrato Social, Estatuto, or Declaração, depending on the type of legal entity being created.

What types of documents can serve as the Ato Constitutivo for different legal entities?

The Ato Constitutivo can take various forms depending on the type of legal entity. For example, a Contrato Social is used for limited liability companies, simple partnerships, and similar entities. An Estatuto is used for cooperatives, foundations, associations, and public companies. A Declaração or Requerimento is used for individual enterprises like EIRELI (Individual Limited Liability Companies) and MEI (Microentrepreneurs).

What is the significance of registering the Ato Constitutivo with an official body?

Registering the Ato Constitutivo with an official body—such as the Junta Comercial, Cartório de Registro de Pessoas Jurídicas, or Seccional da OAB—legally establishes the existence of the entity. This registration is necessary for the entity to operate in the legal and business environment, and it retroactively applies from the date the Ato Constitutivo was signed if registered within 30 days.

What happens if the Ato Constitutivo is registered after 30 days?

If the Ato Constitutivo is registered more than 30 days after it is signed, the registration date becomes the effective date of the entity's legal existence. This means that the legal entity's rights and obligations are tied to the registration date, not the original date of the Ato Constitutivo.

What is the role of governmental authorization in the creation of certain legal entities?

In some cases, before registering the Ato Constitutivo, certain legal entities need prior authorization or a concession from government authorities. This applies to businesses in industries considered strategic or sensitive, such as airlines, broadcasting, aerospace, and arms manufacturing. The authorization must be obtained from the relevant governmental body, such as the president, governor, or a specific ministry, before registration can occur.

Which government bodies are involved in the registration of a legal entity's Ato Constitutivo in Brazil?

The Ato Constitutivo of a legal entity in Brazil can be registered with one of three official bodies: the Junta Comercial (for business entities), the Cartório de Registro de Pessoas Jurídicas (for associations, foundations, and some other types of entities), or the Seccional da OAB (for law firms and lawyers' societies).

What is the timeframe within which the Ato Constitutivo must be registered?

The Ato Constitutivo must be registered within 30 days from the date it is signed. If the registration happens within this period, the legal effects of the entity's formation will be retroactive to the date of signing. If the registration is delayed, the effective date will be the registration date.

What happens if the Ato Constitutivo contains defects, such as being signed under duress?

If the Ato Constitutivo contains defects, such as being signed under duress or without proper consent, the entity's formation can be annulled. The legal process allows for annulment within a three-year period from the publication of the registration, which is known as a 'decadência' period.

What does the term 'decadência' refer to in the context of a legal entity's formation?

The term 'decadência' refers to the legal timeframe within which the formation of a legal entity can be annulled. If the Ato Constitutivo is found to be defective or invalid, the annulment request must be made within three years from the date of the publication of the entity's registration. After this period, the entity cannot be annulled.

What is the difference between the Ato Constitutivo and the process of extinction of a legal entity?

The Ato Constitutivo marks the birth or creation of a legal entity, while the process of extinction involves the legal termination or dissolution of the entity. The content provided focuses on the formation process, and a future lesson will cover the circumstances and legal procedures related to the extinction of a legal entity.