BRAZIL Law and Practice Contributed by: Octaviano Duarte, Henrique Forssell, Marcelo Lucidi and Mayara Rahman Rufino, Duarte Forssell Advogados
their specific role or degree of involvement in the crime. 1.4 Limitation Periods In Brazil, there are two distinct legal concepts to consider regarding limitation periods: prescrição (which can be translated as “statute of limita- tions” ) and decadência (often translated as “lapse” or “forfeiture” ). Unlike prescrição , which pertains to the time limit for initiating legal action, decadência typically involves the expiration of a substantive right or entitlement. The prescrição limitation period can be tolled under certain circumstances. The party entitled to a claim may unilaterally interrupt the statute of limitations for actions subject to prescrição , allowing the limitation period to start running again. In contrast, the decadência limitation period cannot be tolled and expires irreversibly once it begins, except if otherwise provided by statutory law. Brazilian law establishes several rules that deal with fraud and fraudulent diversion of assets. Depending on who engaged in these fraudulent acts and who was harmed by these fraudulent acts, the limitation period will vary according to the rules of substantive law. Therefore, there are multiple time limits for bring - ing fraud claims in Brazil. There are also fraud claims that are not subject to any limitation periods. According to the Brazilian Civil Code, if the specific law does not specify what statutory period is applicable to a certain case, the statu - tory limit for bringing a claim will be ten years. Specific limitation periods for bringing fraud claims based on different causes of action include the following:
• claims based on extracontractual civil liabil - ity – generally, three-year limitation period ( prescrição ); • fraud against creditors ( fraude contra cre- dores ) – four-year limitation period ( decadên- cia ); • revocatory actions: three-year limitation peri - od ( decadência ) from the bankruptcy decree; • claims based on the doctrine of piercing of the corporate veil – per the jurisprudence of the Superior Court of Justice, this is not sub - ject to any limitation period; • claims by shareholders or entities against directors and officers – two-year decadência from the date of the general or special meet - ing that approved the directors’ and officers’ accounts; and • claims by government authorities based on the Anti-Corruption Law – five-year prescrição from the date on which the violation becomes known to the company or, in some cases, from the date on which the violation ceased. Unless otherwise provided in the relevant stat - ute, as a rule the limitations period starts to run from the date on which the fraudulent transac - tion was effected (although in some cases the limitation period arguably starts from the date of the party’s knowledge of the fraudulent transac - tion, based on the actio nata doctrine). 1.5 Proprietary Claims Against Property Where a claimant seeks the recovery of property misappropriated or induced by fraud to transfer, a proprietary claim can be asserted based inter alia on the annulment of the underlying transac - tion. If the property reclaimed is in the possession of a bankruptcy estate, a claimant may file a Request for Restitution ( Pedido de Restituição ) within the
43 CHAMBERS.COM
Powered by FlippingBook