Impugnação do plano de recuperação judicial face a segurança jurídico- processual.

Abstract

The objective of this study is to analyze the juridical and procedural security of the relations that develop when the processing of the Judicial Recovery, specifically in impugnation to the recovery plan step. The need for such analysis is justified by the enormous importance of the institute for companies hit by the crisis, when seeks for a government intervention in order to preserve them and with that protect the interests of workers, consumers, the tax authorities, the market and the society as a whole.Was adopted for this, as a method of procedure, the hermeneutic-juridical, who consist in understand the law and interpret the rules that govern it. Was handled the method of deductive-dialectical approach, based on the arguments and counter arguments in relation to alleged acts, using like research technique the bibliographic, document analysis, and explanatory, where will be assessed the devices concerned, the Comparative Law, and direct and indirect sources. Given the value that occupies within the business scenario, the Judicial Recovery shows himself like an innovative institute in replace to the old concordat, this is the result of a historical evolution of the Bankruptcy and Business Law, in which sets aside a sluggish process and who could not fully protect the interests of creditors and debtor to enter in a new stage of national legislation, directed to promote the settlement of that claim together with the reorganization and uplift of the company who provides evidence of economic and financial feasibility. Treat the Company Recovery Act of a civil nature procedure with special rite, hence why is endowed of principles and rules of substantive and procedural law who are own to them. In view of its peculiarities, it’s necessary to examine the obscurities and problems that arise when by the applying the law to the concrete case, including the problem of the impugnation offered by the creditor who figurate in an illegitimate form within the general framework approved by the judge. There concerning to this a true procedural stir by the absence of a rule to regulate such a situation both within the statutory body as the civil process as a whole, by virtue of their speciality it's found in the law a procedural gap that causes feeling of distrust and damage in those who act in the process, revealing a harmful cause to the juridical security in the process. In a comparison to foreign law is perceived that, in order to avoid situations of ambiguity, the magistrate enjoys powers to decide about the merits of the issues that fall as harmful to the approval of the recovery plan, although the homeland legislation put him like a mere reviewer of the legal requirements who should be presented by the debtor together the plan. In this stowage, what is observed is the antagonism of results taken to principled levels, in which the notion of prejudice to creditors rights is shown imminent, and the possible loss of the term of suspension of executions against the debtor company. Tries in front of it resolve this impasse by the using of collision theory, using the criteria of proportionality, necessity and adequacy to propose a viable model for the maintenance of the juridical security and the prestige of the institute in the face of the possibilities juridical and factual achievable.