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Date: May 17, 2022
Posted by: CPDMA Team

Extinction of limited liability company and the liability of partners

Wooden dice with up arrows, lined up, forking indicating s extinction of limited partnership.

The process of dissolution of a limited liability company goes through three stages, the first of which is the Dissolution, followed by the Liquidation and finally, the Extinction.

the phase of Dissolution, which can be partial or total (for the purpose of extinction, total dissolution occurs), it can be said that it is the moment in which the partners express their will, or the obligation to definitively close a company is verified. regulated by Law No. 10,406 of the Civil Code and Law No. 6,404 of the Corporation Law (applied in a supplementary manner, when so provided for in the Articles of Incorporation of Ltd.), more specifically in its arts. 51 (CC) and 207 (Corporate Law), respectively, it appears that at the time of dissolution, the company has not yet lost its legal personality, subsisting until the end of the liquidation process, however, without carrying out any activities during this period. , only taking the necessary actions to close the pending business.

Once the will of the partners or the obligation to terminate the company's activities has been expressed, the company will begin the liquidation process.

During the phase of liquidhereO, the first step to follow is the appointment of a liquidator elected by the company's administrators, as provided for in art. 1,036 CC/02, and may be a partner or a person outside the company, provided that their name is registered in the competent registry (art. 1,102 CC/02). The liquidator is then responsible for collecting and selling the asset (these are the assets that the company owns: furniture, real estate, machinery, stock of goods, products, etc.) and the payment of the liabilities (these are, in general, the expenses , accounts payable, etc.). Finally, the remaining balance, if any, is distributed to the partners.

Also, during this phase, no matter how much the “normal” activities of the company are interrupted, it is the responsibility of the liquidator to respond and comply with all tax obligations provided for by law. In addition, the duties and responsibilities of the partners, administrators and fiscal councilors will survive until the dissolution of the company is concluded (art. 1,104, Law No. 10,406/22, Civil Code; supplementary application Law No. 6,404/76 - Lei de S/A , art. 207). In case of any activities carried out during this period, the partners will be jointly and unlimitedly liable, according to art. 1036 of CC/02.

It is important to remember that when the partners decide, by common agreement, to dissolve the company, an instrument known as Distract is signed. It is there that the partner or third party responsible for the liquidation will be indicated, in addition to stipulating the clauses regarding the method of liquidation. According to section IV, chapter 2, item 2.2 of the Normative Instruction DREI No. 81 of June 10, 2020, it is mandatory to include a clause in the Termination with reference to the person(s) who will be responsible for the assets and remaining liabilities.

At the end of the Liquidation phase, the company will be extinguished.

The extincthereO of the legal entity, is nothing more than the end of its existence. It is when the legal personality of the company no longer exists. With the depersonalization, the respective records, inscriptions and enrollments in the competent body are written off.

Once the society is extinct, it loses its legal capacity, making it impossible to claim any right, representing the same as death for a natural person. Therefore, art. 110 of the CPC is used in cases where the company still has outstanding assets, transferring the responsibilities of the executive acts to its partners, who would be the “successors” of the natural person.

It is worth mentioning that even after the dissolution of the company, the former members are still liable for the payment of any debts of the extinguished company, being this responsibility in proportion to the amount that each one received after the Liquidation phase, as provided in art. 1.110 of the Civil Code.

Furthermore, once the loss of any creditor has been verified, after the dissolution of the company, the latter may file a claim for damages against the Liquidator (final part of article 1110, CC.).

By: Guilherme Guzzon Maurina

CPDMA Team - Corporate


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