Os efeitos jurídicos da falha na divulgação de informações ao mercado pelas companhias abertas

Abstract

Many authors consider access to information as an essential right of the capital market investors, and its effectiveness guarantees a range of benefits to the participants of this market. Although Brazilian Law establishes robust regulation regarding informational obligations applicable to public companies, the doctrine and the tribunals have not analyzed often the effects of breaching such obligations. This work aims precisely to analyze the civil legal consequences of the breach of informational obligations, hereinafter referred to as informational failures. Initially, the economic justifications for the adoption of a mandatory disclosure regime for public companies are presented, as well as the functions that such set of rules performs in the capital market. This paper also provides an overview of federal laws and regulations issued by CVM that impose informational obligations to the players of the market. This work also addresses the possibility that transactions involving securities traded in the capital market could be nullified in the hypothesis of informational failures on the grounds that the was no free consent, due to the existence of essential error or fraud. In addition, the civil liability arising out of damages caused as a result of informational failures was analyzed, whether applicable to the company, the directors or the controlling shareholders. In this sense, the liability of companies due to informational failures was examined considering legal and economics points of view. At last, other topics related to the liability arising from information failure such as D&O insurance and indemnity agreements were addressed. This subject was chosen due to the undeniable relevance of information for the proper functioning of the capital market, and, therefore, due to the harmful effects that the informational failure has on the whole market. The purpose here is to expose the informational obligations applicable to publicly traded companies, as well as the legal consequences of the informational failure, with emphasis on defect of consent and civil liability.