As we have seen, the terms « controller » and « legal representative » refer to, but cannot be considered synonymous. Each of these individuals is treated differently by the law, and they also have a different role in the process of issuing and using the digital certificate. Admittedly, it has now become easier to understand what each concept means and avoid confusion. The legal representative is the person who represents the Company before the IRS and other persons or entities to which it relates. That is to say, if the owner is a legal person, a company, his legal representative is always his partner, socio-administrative or owner. Since the legal acts of the representative are performed by the representative, the representative has the duty to prove to those with whom he will deal on behalf of the represented person not only his capacity, but also the extent of the powers conferred on him. Without the third party being fully aware of the representation, its scope and quality, whether voluntary or legal, the third party will hold that third party responsible for the exercise of acts beyond the authority. As you saw in the previous point, the representative and legal guardian of a digital certificate have different functions. In other words, the appointment of the legal guardian requires the person concerned to cooperate with the legal representative at the certifying authority. They must be provided with the documents so that all the evidence is made personally and with absolute certainty. The statutory auditor, in turn, is the person entrusted with the task of acting on behalf of the company in the exercise of certain shares by proxy.
At this point, it should be noted that there is no obligation for this responsible person to be one of the company`s partners. In accordance with the policy of ownership and responsibility of ICP-Brazil, signed at the time of issuance of the certificate, the obligations of the legal guardian consist of: Presentation of the original documentation proving the data contained in his digital certificate; and responsible for creating, exchanging, using and protecting passwords, private keys and the media they contain. Another situation is that each CNPJ registered with the Internal Revenue Service has a responsible person, i.e. someone who legally represents and represents the company. However, in the field of digital certificates, this person is authorized as a representative. In this sense, in addition to the registration of the holder, it is also necessary to identify the representative and the legal representative of the certification. For example, there are general doubts as to who would be the holder of the digital certificate issued in the name of the company. With this in mind, we have prepared this article to clarify the differences between the controller and the legal representative and their relationship with the use of the legal entity`s digital certificate. Follow! The public power of attorney therefore applies only to representatives of the company if the memorandum of association contains an express provision to that effect.
It therefore does not apply to the owner or the person responsible for its use, who can only appear in person, of any kind of authority for his function. He is also allowed to appoint another legal representative to perform certain tasks on behalf of the company, such as the use of the digital certificate. This step is carried out by means of a public power of attorney, which must be presented at the time of submission of the documents (validation). The holder is always the legal entity itself, i.e. the company that holds the certificate. The legal representative, in turn, is the one listed in the corporation`s certificate of incorporation who can grant the power of attorney for the certificate process. Finally, the responsible person is the one who is actually in possession of the certificate and its private key. As a rule, the legal guardian does not need to be the representative of the company and can be any third party, even if the founding act does not speak. These requirements are set by the IRS and the goal is to protect tax authorities. Thus, the legal representative of a foreign company may be personally liable for non-compliance with legal obligations, declared tax obligations. In this case, the actions of the representative against the interest of the represented party are taken into account.
are acts which are objectively lawful by the representative on behalf of the represented person, but which are prejudicial to him. We are in the hypothesis in the presence of two potentially antagonistic interests: on the one hand, the interest of the represented person, who is supposed to protect, because the idea is that the representative must act to defend the interests of the represented person; On the other hand, the interest of the third party in good faith, whom he charged with the representative, in the belief that he acted in accordance with the instructions. The Civil Code protects the interests of the third party in good faith and cancels the company only if the fact was or should have been known to the third party, since in this case the figure of the third party in good faith no longer exists. Therefore, if the representative may be entering into legal transactions, if there is a conflict of interest with the represented person, with a person who should have known about this fact, this act of negotiation should be declared void. Therefore, it is not possible to change the legal representative of a digital certificate or even update the data without invalidating it, even if third parties are allowed to use the digital certification. Therefore, the duplicity of the use of terms confuses many people. But let`s be clear: the legal guardian of the IRS is not the same as the legal controller of the digital certificate. On the other hand, we think of a legal guardian when a third party who has a connection with the company must have certain freedoms and privileges to act on its behalf. Here, however, the focus is more on the execution of internal activities, which are often related to the accounting, tax and administrative management of the company. While it is possible to issue a power of attorney to appoint a parent or guardian to use the certification on behalf of the agent and company, the responsibility for using the digital certificate still rests with the legal representative.
Despite this possibility of authorization for the use of the certification by a third party, the legal representative cannot modify or update his data without invalidating the digital certificate. In this case, the issuance of a new certificate is required. In the case of the legal person, however, this is not the case, since the issuance of the digital certificate is requested by a third party acting on behalf of the company. The question is therefore who this third party would be: the legal representative or legal guardian. If a responsible person of a legal entity applies to an organization accredited by ICP-Brazil to issue his digital certificate, the first document he will sign is a condition of ownership in which he must inform the holder, the representative and the responsible person. The initial power of attorney, as well as the second way, will only be accepted by the certification authority if they have been issued up to 90 days before the date of submission of the digital certificate documents and must indicate the representative`s authority to act before ICP-Brazil. Indeed, legal persons must regularly fulfill their negotiable, bureaucratic and related obligations, but to achieve greatness, it is necessary to act as a representative. In this sense, the legal representative is like a bridge that connects the interests of the legal entity with external activities, so that when he signs a contract or makes a decision concerning the association, he does not express his own will, but the will of the company. Because if there is a conflict between the interests of the representative and the representative, the way to cancel the transaction that has been concluded is as in the Brazilian Civil Code in Article 119 « It is voidable that the transaction of the representative was concluded in conflict of interest with the represented person, if this fact those who had to do with him, was known or should be known. » .