A responsabilidade civil dos gestores de fundos de investimento

Abstract

This thesis examines the civil liability of investment fund managers towards the market and investors, considering Brazilian civil law and the regulatory framework established by the Securities and Exchange Commission of Brazil (CVM). It demonstrates that the liability of these professionals must be assessed according to their fiduciary duties and the nature of an obligation of means inherent in the management of third-party assets, thereby rejecting the indiscriminate application of the Consumer Defense Code. Based on the legal characterization of investment funds as special condominiums (Article 1.368-C of the Civil Code), the study analyzes the rules governing managers’ conduct, particularly CVM Resolution No. 175/2022 and the ANBIMA Code of Regulation and Best Practices, which impose high standards of diligence, loyalty, and transparency. The research includes an examination of precedents from the Superior Court of Justice and administrative sanctioning proceedings by the CVM that illustrate cases of negligent or disloyal management. Drawing on contemporary legal scholarship (Perricone, Di Biase, Gregório da Silva, among others), the study concludes that the Brazilian legal system already provides sufficient investor protection mechanisms through the principles of good faith and sectoral regulation. The automatic application of consumer law to investment funds, therefore, generates legal uncertainty and conceptual distortions. Ultimately, the paper advocates for the consolidation of a subjective and fiduciary liability regime capable of balancing investor protection with legal certainty for professional fund managers