Including shareholders in the enforcement proceedings from the initial petition may accelerate debt recovery but also challenges the boundaries of due process and the right to a full defense, requiring the creditor to adopt a precise and well-founded legal strategy.
Piercing the corporate veil is undoubtedly one of the most effective tools available to creditors to combat fraud and abuses committed through legal entities. It is a mechanism designed to prevent the misuse of asset autonomy as a shield for noncompliance, especially in cases of asset commingling or deviation of purpose, as provided in Article 50 of the Civil Code.
The 2015 Code of Civil Procedure introduced innovations by systematizing the procedure in Articles 133 to 137, with special emphasis on Article 134, §2, which authorizes the claimant to request veil piercing in the initial petition, including in enforcement proceedings.
This provision represents a significant step forward for the effectiveness of judicial protection, allowing the creditor to avoid waiting for the case to progress before seeking the personal liability of shareholders or managers.
Nevertheless, concerns arise regarding the preservation of due process and the right to a full defense, especially when the request is made at the outset of enforcement proceedings. Although the request may be filed immediately, shareholders can only be included in the enforcement process after a judicial decision granting the incident, ensuring their right to defend themselves.
When filed in a cognizance action, the request for veil piercing follows the incident procedure, with the possibility of suspending the main case until its resolution. In this scenario, both the legal entity and its shareholders are served and may present defenses, and shareholders may later join the enforcement phase as co-defendants alongside the company.
In enforcement proceedings, the logic differs: judicial protection is already executive in nature, and the debtor is served to satisfy the debt. However, as provided by the CPC, the creditor may indicate shareholders or managers in the initial petition, but this does not mean they are immediately subject to enforcement.
At this stage, shareholders are defendants only in the veil-piercing request and must be served to present their defense. Only after a favorable judicial decision do they join the enforcement process, becoming subject to attachment and other enforcement measures.
Thus, the process follows two distinct paths: the primary debtors are immediately subject to enforcement acts, while shareholders remain in a defensive position until a decision authorizes their inclusion in the enforcement proceedings.
It is essential to understand that, in these cases, enforcement proceedings will involve two different types of judicial protection: executive, aimed at the primary debtor, and cognitive, related to the veil-piercing request. This configuration, when included in the initial petition, constitutes a cumulation of claims of different natures, directed at different parties and forming an eventual joinder of parties.
This demonstrates that the traditional dichotomy between cognizance and enforcement proceedings, although still present in the CPC structure, is increasingly artificial given the possibility of coexistence between cognitive and executive protections within the same case.
In this context, care must be taken to avoid procedural errors, such as executing attachments against shareholders before the incident is decided, respecting the coexistence of executive and cognitive protections. The correct approach, as doctrine suggests, would be to use precautionary measures, such as seizure, to ensure the effectiveness of future enforcement without violating due process.
Another important consideration is that, as reaffirmed by the Superior Court of Justice (STJ), weak veil-piercing requests—whether filed in the initial petition or later—may result in an award of attorney’s fees against the creditor (REsp 2.072.206/SP [1] and EREsp 2.042.753/SP[2]). Similarly, the STJ has rejected attempts to directly enforce against companies within an economic group without prior judicial authorization (REsp 1.864.620/SP[3]).
There is no doubt that Article 134, §2 of the Code of Civil Procedure represents progress in terms of enforcement effectiveness, sparing the creditor from waiting months or years before requesting veil piercing. However, this speed must not override fundamental guarantees.
The goal is to strike a balance: allowing the request in the initial petition while ensuring that shareholders are served, heard, and only then held liable. The request for veil piercing in the initial enforcement petition is a legitimate and powerful tool for creditors, provided it is used responsibly, supported by strong evidence, and respectful of procedural guarantees, so that speed does not undermine due process nor serve as a pretext to delay the satisfaction of legitimate claims.
When properly handled—with evidence of deviation of purpose and/or asset commingling and with due respect for due process—the mechanism can balance speed and guarantees. After all, a fair process is one that not only ensures legality and legal certainty but also delivers a swift and effective response to the creditor.
[1] https://processo.stj.jus.br/processo/julgamento/eletronico/documento/mediado/?documento_tipo=integra&documento_sequencial=296279650®istro_numero=202301542417&peticao_numero=&publicacao_data=20250312&formato=PDF
[2] https://processo.stj.jus.br/processo/julgamento/eletronico/documento/mediado/?documento_tipo=integra&documento_sequencial=309274180®istro_numero=202203847172&peticao_numero=&publicacao_data=20250512&formato=PDF
[3] https://processo.stj.jus.br/processo/julgamento/eletronico/documento/mediado/?documento_tipo=integra&documento_sequencial=309274180®istro_numero=202203847172&peticao_numero=&publicacao_data=20250512&formato=PDF
Autor: Fernanda Regina Negro de Oliveira • email: fernanda.oliveira@ernestoborges.com.br
