THE DISREGARD OF LEGAL ENTITY DOCTRINE
UNDER THE VIEW OF THE DUE LEGAL PROCESS
Democratic state. Discursive theory of the process. Procedure for
disregarding legal personality. Due process.
The purpose of this paper is to analyze the procedural aspects of the use of the institute
of disregard of legal personality in Brazilian law, and also to verify if its application is
in line with the constitutional rights and guarantees arising directly or indirectly from
due process of law. Thus, initially, it has as a paradigm the Democratic State of Law,
which requires the conformation of the process to more democratic bases. It then
comments on the emergence of the legal entity and its existential and patrimonial
autonomy in the legal system. This is done by analyzing the limitation of the
responsibility deriving from legal personification, and the context that allowed the
emergence of the institute from disregarding the legal personality. The hypothesis of
application of this institute in Brazilian law is discussed below. Finally, it presents a
proposal of discursive theory of the process, based on the ideas of Jurgen Habermas, to
fit the civil process as an instrument of social integration to enable the adequacy of the
procedure of disregarding the legal personality to due process in its procedural and
material scope. It accomplishes a deep doctrinal analysis, always preoccupied with the
empirical plan, by means of a reproduction of the jurisprudence of the Superior Court of
Justice referring to the subject matter. It is also important to analyze critically the
pioneering incident of disregarding the legal personality introduced by the New Code of
Civil Procedure, concluding the insufficiency of the new legislation and the imperative
need to change mentality in order to establish a theory that guarantees due process in all
aspects, to enable a Democratic Jurisdiction.