By the above mentioned decision, published on November 13th 2017, the 3rd Panel of the “STJ” unanimously decided, based on article 1,030 of the Civil Code, for the possibility of judicial exclusion of a majority shareholder and administrator of a limited liability company when it is at will majority of the minority shareholders.
Under the terms of the decision set out below, this assumption is only possible when the majority shareholder of a limited liability company is in serious breach of its obligations.
“SPECIAL REMEDY, CORPORATE LAW, ACTION OF PARTIAL DISSOLUTION OF THE COMPANY, NEGATIVE PROVISION OF JURISDICTION, NO OCCURRENCE, CERTIFICATION OF DEFENSE, NON – EXISTENCE, MAJORITY MEMBER, PRACTICE OF SERIOUS FAILURE, EXCLUSION, ARTICLE 1,030 OF THE CIVIL CODE OF 2002 MINORITY MEMBERS. INITIATIVE POSSIBILITY”.
1. Controversy is limited to determining whether it is possible to exclude a majority shareholder from a limited liability company for serious misconduct in the performance of its obligations, at the initiative of a majority of the other partners.
2. Pursuant to Statement No. 216 / CJF, approved at the Third Civil Law Day, the quorum of deliberation set forth in art. 1,030 of the Civil Code of 2002 is an absolute majority of the capital represented by the quotas of the other partners.
3. In determining the absolute majority of the capital stock for the purposes of judicial exclusion and a limited liability company, only the quotas of the other partners, excluding those belonging to the partner to be excluded, shall be considered, not affecting the condition provided for in art. 1,085 of the Civil Code of 2002, only applicable in the case of extrajudicial exclusion of a member by resolution of a representative majority of more than half of the share capital, upon amendment of the articles of association.
4. Special appeal not provided.