La inoportunidad e ineficacia juridica de la modificacion del regimen juridico de la sociedad por cuotas portuguesa mediante el D.L. 33/2011, de 7 de marzo

Abstract

Social capital is an essential element of corporate law, and its definition has generated some controversy in our doctrine, being considered by some authors as a "mysterious figure who takes effort to capture its nature" The main objective of this thesis is, questioning and accepting any opposing views, but as for us, and until proven otherwise, liable to refutation, demonstrating that the legislative change undertaken by Decree Law nº 33/2011, published on 7 March 2011, which amended the Portuguese Commercial Companies Code by adopting measures to simplify the incorporation of limited companies process proves innocuous and devoid of legal foundation, putting into question the applicability and effectiveness of legal juridical institutes, of civil and tax nature, if there hasn´t been this change in our legal system, not only safeguarded the interests of others, but inclusive personal interests of traders themselves. The use of the figure of disregard of legal entity of legal persons as well as, the institute of legal reversal for tax debts, headquartered in tax enforcement, stop making sense when the non-existence of social capital and the eventual nonexistence of personal assets of the social partners of a limited company (as this legislative change is allowing and encouraging), cut off the possibility of their practical application and legal effectiveness. Accordingly, analyzing the dogmatic origins of the disregard of legal entity, the reversal of tax enforcement headquarters and its various theories, covering the jurisprudential and doctrinal arguments that contribute to the ongoing discussions on these topics, and treating then the reception of these mechanisms by portuguese doctrine and jurisprudence, focusing on the analysis of relevant cases treated on Portuguese law, we will make then an approach to the issue from the perspective of other European jurisdictions, especially Spanish and Italian, among others, trying to demonstrate, finally, the ineffectiveness and inexpediency of the above referenced legislative amendment to the Portuguese Commercial Companies Code, by proposing some alternative legislative solutions.