A assembleia-geral de credores na recuperação judicial sob análise da sustentabilidade econômica

Abstract

From the hypothetical-deductive method, the aim of this research is to analyze the economic sustainability of judicial reorganization, through the committee of creditors. It is verified that not only does sustainability refer to the environmental legislation, but also to a triple bottom line – environmental, economic and social. Therefore, based on economic sustainability, some principles of judicial reorganization are discussed, specially the guarantee of the cost of credit reduction in Brazil, because the law acquired other economic mean, favoring financial institutions, inconsistent with the principle of the company preservation. In this context, this research verifies whether the participation of creditors in taking assembly decisions is sovereign or not, so as to withdraw the Judicial Law discretion in judicial reorganization. This is because many times, creditors seek to retrieve their credit by means of guaranteeing only personal interest. Although limited, the magistrate discretion is important in assembly decisions, because it is based on the principle of company preservation, so as to avoid some creditor´s decisions that generate abuse of rights and insult the legal framework. It means that the judicial role is crucial for the ongoing of judicial reorganization, aiming to reprehend the most unfeasible managers, who use the law to keep managerial activities without the most sustainable merits. However, concerning other external aspects, the Brazilian reorganizational system lacks incentives to cooperate with practices aiming to help the company reorganize. There must be an investment on the part of State, with programs to reorganize local companies, guide managers, for prevention to become a sustainability framework for the company. Not only is the company interested in profit, but also, preventively, in being sustainable, with the purpose of guaranteeing the application of the principle of the company preservation in article 47, Law nº 11.101/2005. To sum up, the company that reorganizes has judicial possibilities to pay its creditors, to cooperate with the State and to fulfill its social function.