Reflexos das instituições financeiras no processo de recuperação judicial: credor fiduciário perante a Lei nº 11.101/2005

Abstract

Law o. 11101 of February 9, 2005, introduced the institute of judicial rehabilitation into the Brazilian legal system, defining it and delimiting its applicability, extending to entrepreneurs and their creditors a suitable alternative to, on the one hand, reestablish their companies and, on the other, widen the perspective of payment of the amount owed, respectively. The provisions of the above-mentioned law aim to include judicial rehabilitation as a means of instrumentalizing, with the support of the judiciary, a more efficient way of restructuring companies that incurred debts in the course of their activities and became insolvent, creating a controlled scenario in order to optimize compliance and restructuring. The very nature of the entrepreneurial activity makes it closely related to the national economic order and, for this reason, the relevance of banking institutions and the contracts they sign with the majority portion of the enterprises in the exercise of their social functions must be emphasized. During the course of this monograph, Law 11101/05, as amended by Law 112/20, was analyzed, highlighting its provisions, which deal with banking institutions and fiduciary credit in the scope of judicial rehabilitation. Therefore, considering the legislator's objectives when dealing with the matter of judicial rehabilitation, it is appropriate to analyze the provisions about the impossibility of including fiduciary credits, usually held by banking institutions, in the process in question. It is intended to study the effects of the privileged position of the credits of financial institutions in the scope of judicial rehabilitation, as well as the justification of principles and economics presented by doctrine and jurisprudence in light of the normative