The possibility of charging sucumbence fees in the incident of disregard of legal persona

Abstract

Succumbing fees represent the legal fees that the losing party is obliged to bear in favor of the winning party. The attribution of these fees is subject to the law that establishes parameters that give a certain margin to judicial discretion and depends on the party responsible for the casualty of the demand. On the other hand, the incident of disregarding the legal personality appears as a mechanism available to the creditor to reach the assets of the partners of a company that does not have assets subject to execution, to guarantee the satisfaction of the obligation assumed if the legal requirements are met. to reach the assets of those who were not part of the original legal-procedural relationship. Until recently, jurisprudence understood that in the case of an incident of disregard of legal personality there was no need to talk about succumbing, as it was an incident to the process. However, recently, the Superior Court of Justice changed its understanding to recognize the possibility of succumbing only if the decision is favorable to the defendant in the incident. As there was a substantial change in the form of the understanding drawn up by the STJ, two instruments await a decision with a more qualified quorum to guide and pacify the jurisprudence. The analysis of succumbing fees in the context of incidents requires specific considerations of each case, considering its nature and complexity, as well as the resources mobilized by the parties and the relevance of the work of the lawyers involved. Through bibliographical research, this work will seek to examine the recent position adopted and pending pacification, in addition to questioning whether this perspective could compromise the legal security of the procedural system.