The determination of restraining orders for assets by the criminal Justice is far from being something new in the Brazilian legal system. Among the enforcement measures, the CPP sets forth the seizure “of assets, acquired by the defendant, and obtained by means of the proceeds of crime even though they had already been transferred to a third party” – a remedy which is recommended when there is the existence of “strong evidence that the source of the goods is illicit” ( article 126). In this case, the law provides the filing of a third parties’ motion (article 129), suggesting that, in addition to that procedural remedy (“it might even”), the restraint may be challenged “I – by the defendant, on the grounds that the goods had not been acquired with the proceeds of crime; II – by the third party, to whom the goods were transferred against payment, on the grounds that they had been acquired in good faith “. This is the rule of art. 130, whose sole paragraph conditions the judgment of the third parties’ motion to the final decision after it has become res judicata, although it is possible to suspend the remedy in the cases of article 131. In addition to the seizure of the real estate, the law also permits such action to fall on personal property as long as the conditions of art. 126 are present. In the event of a conviction, and because it is a seizure, the consequence is the valuation and sale of the goods, and the money obtained from it shall be given to the National Treasury, being subtracted the amount that is due to the injured party, or to the third party in good faith (article 133).
When the civil liability of the defendant is argued, the law also sets forth the mortgage on real estate (article 134), whose value must be arbitrated, and which will have to be definitely paid off after the conviction. Incidentally, the law provides for the seizure of personal property (article 137). Due to the fact that that is a remedy related to the potential conviction of the defendant, if there is an acquittal, the seizure will not proceed (article 141). Conversely, if there is a final decision that becomes res judicata, the case will be resent to the civil court (article 143). In addition, article 63 of the same law further provides that, “If the judgment of conviction becomes res judicata, it may be enforced in the civil court by the defendant, their legal representative, or their heirs for the purpose of compensation of damages”, notwithstanding the possibility of bringing a criminal action directly before the civil court (article 64).
However, in addition to those cases, there are others in which the liability of the companies with which the defendant (criminal) might have – or has had – a corporate relationship, either as the corporation’s shareholder or as a director, is considered. If it is not a case of civil liability as a result of a future conviction, the probable civil compensation and, therefore, not exactly at the level of the debt, what is alleged in some cases, is a typical case of reverse piercing of the corporate veil: using a corporation for the practice of illicit acts, with features that fit in article 50 of the Civil Code, except that oppositely, as it was previously said, according to art. 133, § 2 of the Code of Civil Procedure, in which it rules the so-called reverse piercing of the corporate veil.
In certain situations, the shareholders or directors of the legal entity, by badly exercising the legal positions resulting from the autonomy of the ownership rights, employ them in a dysfunctional way. Thus, piercing the corporate veil would appear as a remedy capable of preventing simulations and fraud. Ultimately, this is what was intended when the seizure of a third party’s assets, based on art. 4 of Law 9.613 / 98, was determined.
The great challenge in these cases is to ensure the compliance with the due process of law.
In the civil sphere, the so-called motion to pierce the corporate veil was created precisely to ensure that there will be no invasion of the ownership rights without the strict observance of the due process of law. As we have already mentioned in doctrinal terms, “the central idea of the new provision is that one only comes to pierce the corporate veil after the third party whose ownership rights are about to be seized has gone through the adversarial system. From a systematic perspective, the provision is a logical development of the rules of articles 9 and 10 of the new code (which have been written as “basic norms”): if the intention is to reach the ownership rights of someone who was not a party – even if under the relevant grounds of fraudulent conduct – it is coherent with the due process of law that, at least as a rule, an opportunity should be given for that individual to be heard.” (See “Do incidente de desconsideração da personalidade jurídica”, in Comentários ao Novo Código de Processo Civil, coordinated by Antonio do Passo Cabral e Ronaldo Cramer, 2ª ed., Rio de Janeiro, Forense, 2016, pp. 229/242). As a matter of fact, in all the cases in which a third party’s assets may be subject to pay off someone’s debt – in cases of fraud against creditors, fraud upon the enforcement of the judgment, piercing the corporate veil, and even of an alleged succession (in material terms) – the system opened an equal opportunity for the prior and adequate cognition, with possibility of allegation and proof by the individual whose assets are intended to impact.
It is true that “in exceptional and duly justified cases, it will be possible to postpone the third party’s participation in the adversarial system, by means of provisional remedies. Of course, this happens because the fact that the third party had been previously heard can not serve as an opportunity for him or her to frustrate the enforcement measure, if and when granted. Therefore, exceptionally, by applying the requirements of the interlocutory relief (article 300), it may be ordered the seizure of the leviable assets belonging to the third party who is allegedly responsible for them, before the judgment of the piercing of corporate veil.” (See op cit). However, it would be useless to legitimate the provision which gives great importance to the previous right to be heard if, on the other hand, restraining orders on an urgent basis were granted with complacency without the party being previously heard. In oblique ways, one would be considering dead-letter the important innovation that the CPC / 15 has set forth, and which seems to be applicable to any case regarding the extension of assets responsibility. It must also be considered that the fraud is not presumed and that, therefore, the burden of proof always falls on the one who claims its supposed existence.
Although all this is not ignored by the criminal procedural doctrine, the subject deserves to be revisited because of the evolution experienced in civil procedural matters. This is the invitation that is made here.