Preservação da empresa na falência: crítica à jurisprudência de assistencialismo ao devedor

Abstract

This paper approaches the modifications of the principles introduced to the brazilian insolvency and creditor rights legal system by the Federal Law no. 11.101/2005, and the way these modifications have been received by the courts. It analyzes the new legal mechanism of business reorganization, emphasizing the advances it represents if compared to the old reorganization system, especially in regards to the preservation of the company when the insolvency of its personification occurs. Then, it is suggested that the law interpreters must have some caution in the studies around this innovation, since it is becoming common the misconception between the procedure of business reorganization and the preservation of the company itself. After that, the paper seeks to demonstrate that the liquidation procedure is also a very efficient mechanism to preserve the company value. Lastly, some judicial decisions against the law are analyzed, and their foundation in the misconception between the preservation and reorganization of the company. The paper concludes suggesting to Law appliers the surpass of some misconceptions that were appointed, and also the negative view that surrounds the liquidation procedure.