Extensão e fundamentos do controle judicial sobre a aprovação do plano de recuperação empresarial pela assembleia-geral de credores
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Data
2015-12
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Orientador(res)
Guimarães, Márcio Souza
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Resumo
Law 11.101 attaches great importance to creditors in business recovery process because it gave them the power to approve, propose changes or reject the plan presented by the debtor. In this context, this paper highlights the negotiating character of this deliberative phase as well as conflicts of interest and abuses of rights that may arise in this situation. The company crisis concerns not only the debtor, but also the stakeholders connected to it and the community itself, because of its social function. So, based on the plurality of interests that gravitate around the company, it is the duty of the state judge to ensure the preservation of viable enterprises. Therefore, this study assumes that the function of the judge is not the mere countersigning of the plan approved by creditors. From this perspective, this paper aims to analyze the three major doctrinal positions on the extension of this judiciary power and its support in the case law. To do so, the main doctrines were checked on the topic and have been studied a lot of trials from Superior Tribunal de Justiça and from state’s TJ. The result of this research was that the established case law of the STJ, accompanied mostly by state’s TJ, consolidated in the sense that the judge has the power and duty to make a legality control, formal and material, of the entire recovery process without, however, interfere in the plan's merit, already submitted to the general assembly of creditor’s resolution, in order to carry out a second filter with regard to economic viability.
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Judicial reorganization Reorganization plan General assembly of creditors Abuse of rights Company preservation Social function of the company Judicial review Recuperação judicial Plano de recuperação judicial Assembleia-geral de credores Abuso de direito Preservação da empresa Função social da empresa Controle judicial