Deferimento, homologação e convolação da recuperação judicial em falência: análise conforme a jurisprudência do Tribunal de Justiça de São Paulo

• Autor(a) principal: Amaral, Flavia Aparecida do
• Data de Publicação: 2021
• Tipo de documento: Dissertação
• Idioma: por
• Título da fonte: Biblioteca Digital de Teses e Dissertações da PUC_SP
• Texto Completo: https://repositorio.pucsp.br/jspui/handle/handle/24102
• topic: CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO; Sociedades comerciais - Recuperação; Empresas - Falência; Falência - Leis e legislação; Corporate turnarounds; Business failures; Bankruptcy - Laws and legislation

The present study aims to analyze the application of the principle of preservation of the company in three moments of the processing of the judicial recovery: the granting, the ratification of the judicial recovery plan and the bankruptcy convolation, according to the jurisprudence of the São Paulo Court of Justice. The relevance of the chosen subject is justified by the diversity of positions adopted by the country's largest court in terms of recovery, when applying the principle of preserving the company or not. The methodology used was the analysis of 191 judgments issued by the Court of Justice of São Paulo, related to 137 companies under judicial reorganization, in the period from 2007 to 2020. From these, 36 judgments dealt with the granting of judicial reorganization; 99 referred to appeals from the decision that assessed the ratification of the judicial reorganization plan and 56 dealt with cases in which the judicial bankruptcy reorganization was subject to judgment. From the cases analyzed, 5 were selected from each of the moments, in order to exemplify how the principle of company preservation has motivated judicial decisions to overcome legal obstacles in the company's crisis and how the withdrawal of the unviable company from the market has been adopted. It was found, in the judgments studied, that the principle of company preservation has been used as a solution to the cases of lack of Law nº 11.101/2005 and that the analysis of the feasibility or not of the judicial recovery of the debtor by the judge has been adopted in a restrictive manner, in cases where the analyzed situation brought elements that justified the intervention beyond what was or would have been decided by the creditors and, especially at times when the requirements of article 58, § 1 of Law nº 11.101/2005 were not present cumulatively. The conclusions point to the lack of uniformity in the judgments, since the Court of Justice of São Paulo sometimes acts in favor of the preservation of the company, with relativization of legal criteria, sometimes in favor of the decree of bankruptcy