A aplicação da business judgment rule no Brasil: análise de seu uso na CVM e no Poder Judiciário

Abstract

The present work will address, without pretending to exhaust the topic, the business judgment rule – sometimes referred to as the business judgment rule – and its conformity to the brazilian corporate legal provisions. To this end, it is based on an explanation about the rule in its country of origin and the two main understandings on the theme in the American context, in addition to the elements that compose it. From this, an analysis of the possibility of application of the rule in the country is made, taking into account the fiduciary duties of directors provided for in the provisions of Law 6.404/1976 and the regime of civil liability of the directors of corporations. Next, it is exposed how the business judgment rule has been used in the CVM and the judiciary, at least in the very rare occasions in which the institute was used, presenting, at the end, some considerations about such application.