A responsabilidade dos diretores de sociedades por ações pelo descumprimento do dever de diligência

Abstract

This paper examines the liability of corporate directors for breaching the duty of care, as set forth in Article 153 of Law No. 6.404/1976 (Brazilian Corporations Law), which requires directors to act with diligence, prudence, and attention in safeguarding the company’s interests. The duty of care, as part of the fiduciary obligations of directors, serves as a key standard of conduct for sound management and for maintaining trust within the capital markets. Based on a qualitative and bibliographical methodology, the research draws upon legal doctrine, case law, and regulations issued by the Brazilian Securities and Exchange Commission (CVM), as well as real cases that exemplify how the duty of care operates in practice. The study explores the main theories of directors’ liability, emphasizing the gradual adoption of the business judgment rule in Brazil, which protects business decisions made in good faith and with sufficient information, even when economic results are unfavorable. The Americanas S.A. case is analyzed as a contemporary example of governance failure and breach of fiduciary duties. The accounting fraud and management override committed by the executive board exposed severe violations of diligence and loyalty, leading to civil, administrative, and criminal liability. Finally, the paper suggests regulatory improvements aimed at reinforcing supervision and transparency in publicly held companies, emphasizing the preventive role of the CVM and the adoption of international best practices. It concludes that the duty of care is not merely a legal requirement but a fundamental ethical and institutional element for the integrity and sustainability of the Brazilian capital market