A irracionalidade da tomada de decisão dos credores na aprovação do plano de recuperação judicial: estudos a partir de processos de recuperação judicial na comarca da capital do Estado do Rio de Janeiro

• Autor(a) principal: Licks, Gustavo Banho
• Data de Publicação: 2022
• Outros Autores: [e-mail]
• Tipo de documento: Tese
• Idioma: por
• Título da fonte: Biblioteca Digital de Teses e Dissertações da UERJ
• Texto Completo: http://www.bdtd.uerj.br/handle/1/19019
• topic: judicial recovery; Asymmetry of information; Bargaining costs; General assembly of creditors; Economic analysis of law; Recuperação judicial; Assimetria de informações; Custos negociais; Assembleia de credores; Análise econômica do direito; CIENCIAS SOCIAIS APLICADAS::DIREITO::DIREITO PRIVADO::DIREITO CIVIL

The thesis analyzes, by inductive method, judicial recovery lawsuits in which, despite having had the support of the creditors in the assembly for the approval of the plan, the decision-making is not apparently justified given the company’s state of deterioration, which would be contrary to the interests of creditors regarding the receiving of their credits. Furthermore, it would distort the purpose of the institute of judicial recovery. The thesis investigates the motivations and the ways in which this paradox is made possible. The research is justified, among other reasons, by the fact that the effects of the crisis escalation and of a late bankruptcy transcend the sphere of debtors and creditors submitted to the recovery lawsuit. The main hypothesis is that Law nº 11.101/2005 does not have tools which allow withdrawing from the market the artificially maintained unviable company through creditor´s vote, whose motivations are based on negotiation costs and asymmetry of information. To test it, the general objective of relating the main factors which would stimulate creditors to such a deliberation was pursued. Sixty-five lawsuits in the judicial district of the Capital of the State of Rio de Janeiro were studied, of which 12 were chosen as target lawsuits. Those in which it was possible to observe that there was a bargain between creditors and debtors before the assembly, once the plans originally presented in the case before the deliberation were replaced. It was identified that the period between the granting of the judicial recovery processing and the installation of the assembly exceeded, on average, twice the legal deadline of 150 days. It was verified that, after installation, the deliberation took place quickly and all classes of creditors approved the plan with high percentages and through a strong concentration of proxies. During the procedural period prior to the installation of the assembly, there was an asymmetry of information between debtors and creditors Likewise, it was verified that there are negotiation costs which discourage the participation of creditors in the assembly and that the plans are built for two groups. One group approves the plan, while the other suffers its consequences. It was observed that the target-debtors accumulated losses from the beginning of the lawsuit to two years after the assembly, but almost all of them accomplished with the obligations described in the plan. When they failed, the plan was modified once again in a new assembly. The data were interpreted through the Economic Analysis of Law, concluding that the asymmetry of information causes uncertainty in creditors, consequently, increasing risk, to which they are averse. To minimize this, creditors accept disadvantageous solutions, without considering the scenario of potential declaration of bankruptcy. It is concluded that the plan is modeled to enable the fulfillment of obligations during the procedural period and until a new request for judicial recovery, relying on the selfish rationality of some creditors, which is verified in the target lawsuits, while the business, in this game of interests, does not recover.