O superendividamento do MEI e o vácuo legislativouma análise crítica da jurisprudência à luz da Teoria Finalista Aprofundada

Resumo

The present work proposes the creation of a specific legal regime to address the financial crisis of the Individual Microentrepreneur (IME), from a lege ferenda perspective. The justification for the new law lies in the clear inefficiency of the currently existing legal instruments. he Law on Over-Indebtedness (Law No. 14,181/2021) has been repeatedly set aside by case law due to a restrictive interpretation of the Finalist Theory, while the Law on Judicial Recovery and Bankruptcy (Law No. 11,101/2005) has proven, in practice, to be ineffective for the reality of the individual microentrepreneur, due to excessive documentary requirements, high costs, and payment terms incompatible with their capacity. Given this regulatory gap, the proposed law establishes a tertium genus, embodied in a biphasic procedure that combines the speed of mechanisms designed for consumer protection with the preservation of the economic activity of the individual microentrepreneur. The first phase of an extrajudicial and conciliatory nature prioritizes self-composition as the preferred means of conflict resolution. The second phase, judicial and simplified, establishes a procedure with flexible procedural instructions and reduced costs — including the waiver of the creditors' assembly, as already provided for in special judicial recovery — as well as the possibility of deferring and splitting procedural expenses, with payment at the end of the procedure or spread out in the installment plan, in order to avoid worsening the financial situation of the IME. The procedure culminates in the formulation of a payment plan that encompasses all liabilities, while simultaneously ensuring the protection of the existential minimum. The preparation of this proposal was based on bibliographic and case law research, with a critical examination of doctrines, judicial decisions, and socioeconomic data. It is concluded that the law outlined here constitutes a legally consistent and pragmatically adequate solution to ensure access to justice, the preservation of dignity, and the possibility for the IME to re-enter the market, thus fulfilling the constitutional precepts that guarantee favorable treatment for microenterprises and enable the preservation of the economic activity that fosters the national economy.

Ficha do documento

Tipo

Dissertação

Ano

2025

Instituição

Fundação Getulio Vargas

Fonte

Repositório da FGV

Idioma

Português

Acesso

Acesso aberto

Identificador

oai:repositorio.fgv.br:10438/38146

Palavras-chave

Microempreendedor individualCrise financeiraProposta legislativaMínimo existencialAcesso à justiçaIndividual microentrepreneurFinancial crisisLegislative proposalExistential minimumAccess to justiceDireitoEmpreendedoresDívidas