Análise jurídica do pedido falimentar face sua natureza executiva

Abstract

Bankruptcy Law is a sub-area of Brazilian Business Law which holds the important function of regulating through principles, norms and rules, the proceedings that are taken during the Bankruptcy Lawsuit and after the Bankruptcy decree of a debtor businessman, who was submitted to an insurmountable financial crisis. Thus, it emerges the necessity of the liquidations of his asset equity as a form to solve the liability, through special insolvency proceedings composed by creditors. The monographic work develops from an analysis of the cause of requesting, that is described in the Art. 94 §I, of Law No. 11.101/2005, Companies Recovery Law, which was elaborated from the insolvency identification system as an unjustified lateness, that since the creation during the validity of the Decree-Law No. 7.661/1945, it was utilized as a judicial form of debts charging by the creditors, having seen the severe treatment of the revoked institute with the debtor. Despite the presented divergence, the criticized norm still remained in the Companies Recovery Law however within a completely diverse conjuncture from the what was presented previously. Though, the transformation was not sufficient enough to solve the riot. Before the exposed, it arises the present discussion in a consistent form as a way to get locked the archaic questioning, and thus to offer a reply to the credit class as well to the debtor businessman about the real nature of the referred cause to of action , so that it can answer the research problem which is: is that possible the use of Bankruptcy as a form of charging of debts? As the hypothesis, it is aimed the possibility to affirm that, although not as a practice which evidences just the maximum interest of creditors, but as a deliberation between debtor and creditor that together can utilize the Bankruptcy, as a way to consecrate both interests. To achieve this, it is intended to understand if the cause of action preview in the Art. 94 §I, of the Companies Recovery Law, is utilized as an executive route of debt through the analysis of principles, rules, and fundamentals of Bankruptcy accompanied by the necessary assumptions to obtain the bankruptcy claim. To reach the specified objectives it is used the deductive approach method, from the analysis of judicial decisions and generic doctrinal opinions regarding the topic, and so can attest the relevant solution to the theme. The methods of historical evolutionary procedure by means of the study of Brazilian rise of Bankruptcy Legislation, and of the comparative study among the Law No. 11.101/2005 and the Decree-Law No. 7.661/1945, as well as the guided search technique based on the bibliographic survey directed to the use of doctrines, articles, dissertations and legislation, besides the documentary research through the study of judicial decisions that interpellate the present explanation. Thereby, with the contribution of the research, a doctrinal and juridical pacification is present about the questioning, and the Bankruptcy may continue to exercise its contribution freely for the national legal system.