Métodos adequados de resolução de conflitos na recuperação extrajudicial

Abstract

The Bankruptcy and Extrajudicial Recovery Law in relation to private agreements brought a great advance in overcoming the financial crisis and recovery of legal entities and individual entrepreneurs, consisting of a type of dejudicialization that lends itself, to a certain extent, to the relief of the Judiciary and, at the same time, also honors private autonomy and the principles of business law. Unlike the old Bankruptcy and Agreement Law, the aforementioned Law provided for agreements between debtor and creditors to be submitted to judicial approval, as well as free adjustment between them, in accordance with art. 167 of the respective Law (private agreements). Here, however, without the respective approval, projecting various effects in the orbits of the respective legal spheres, avoiding thus the bankruptcy of the company. In turn, in other articles 161 to 166, the same law regulates the description of extrajudicial recovery, which constitutes a modern tool of the international business system, honoring self-composition, dispensing even more state intervention. With the change promoted by Law 14,112/2020, Art. 20, letter “b”, which changed the Code of Civil Procedure, the legislator wanted to encourage, at every level of jurisdiction, conciliation and mediation, in the face of business financial crises, methods of negotiation not very used in the area of extrajudicial and even judicial recovery. What types of agreement, nature, modality and effects are: optional and mandatory, according to the quorum and other legal requirements to be observed, as well as free negotiation between them, constitute the object of study of this dissertation, always searching for the improvement of the respective institutes to overcome the economic-financial crisis and consequently eliminate the risk of the company going bankrupt, preserving its social, environmental, tax and economic-financial function. From a methodological point of view, this research was conducted based on bibliographic analysis. The research focused on documents, legislation and Normative Acts, especially Resolutions of the National Council of Justice, as well as scientific articles, judgments of the Superior Court of Justice and doctrine concerning the topic of resolution of alternative methods applied to out-of-court recovery. In order to better understand the cause of business crises and their possible solutions, we surveyed legal actions involving the topic on the websites OBRE, SERASA and CNJ, also searching for works published in the databases Scielo, Scopus, Web of Sciences and CAPES Periodicals. Data on the delay in actions involving the topic of out-of-court recovery and the consequent impacts of judicial delay on the recovery of companies were also refined and compared, culminating in the present with suggestions for legislative improvement.