Estratégias do credor face à (possibilidade de) recuperação judicial, concurso especial e concurso universal de credores

Resumo

The present work aims to answer the following question: What is the recommended strategy(ies) for the unsecured creditor, mortgagee or owner or fiduciary assignee to increase the chances of receiving their credit from the debtor that faces bankruptcy or is going through an economic-financial crisis? In order to achieve this objective, the initial chapters provide the reader with a global view of credit preferences in creditor competitions in the Brazilian system. Additionally, the positions taken by creditors in the context of judicial recovery are presented, which may or may not precede a bankruptcy process, but, in any case, implies a risk to the satisfaction of the credit. Another secondary issue addressed by the work is the presence of distinctions in position regarding the preference for satisfying one's credit in the context of private execution (where special competition may occur), judicial recovery and civil or business insolvency (bankruptcy), where take place the universal competition. Such distinctions give rise to the phenomenon called forum shopping by the North American doctrine, creating an opportunity for the adoption of behaviors that are potentially contrary to the maintenance of going concern value. The research is justified by the absence of works that deal with such issues in a combined way. The fact that the normative diplomas that regulate the main institutes covered in this work are recent (2015, in the case of the Civil Procedure Code, and 2020, when Law nº 11.101/2005 was substantially changed) and the relative scarcity of works on the themes proved to be the main obstacles to the development of the work. Despite this, it was possible to identify that there are few distinctions regarding credit preferences in the national system and that exceptions to the subjection of credits to judicial recovery are largely in line with such preferences. More importantly, the analysis of credit preferences made it possible to extract guidance for the creditor, both at the time of contracting and collecting credit, and the study of jurisprudence made it possible to point out the risks and uncertainties inherent to the outlined strategies.

Ficha do documento

Tipo

Dissertação

Ano

2024

Instituição

Fundação Getulio Vargas

Fonte

Repositório da FGV

Idioma

Português

Acesso

Acesso aberto

Identificador

oai:repositorio.fgv.br:10438/35457

Palavras-chave

Devedores e credoresSociedades comerciaisRecuperaçãoFalênciaInsolvênciaConcurso universalConcurso especialObrigaçõesDebtors and creditorsCorporationsReorganizationBankruptcyInsolvencyUniversal competitionSpecial competitionObligationsDireitoSociedades comerciais - Recuperação - BrasilFalência - BrasilObrigações (Direito)