Problemas na aplicação do “Cram Down” brasileiro: uma proposta alinhada à teoria de Richard Posner

Abstract

The free exercise of economic activity is a constitutionally guaranteed right. Nevertheless, is known that the development of this activity assumes a risk factor, determined by situations – political, economic and social- often outside the control of the business person. Thus, in case of crisis, it is necessary the state intervention in order to harmonize the various interests of all actors responsible for the development of economic activity, presented as possible solutions is an elaborate plan for the continuity of the company, is the extinction of this in the case of unviable. In these terms, this study aims to analyze the changes resulted from the New Bankruptcy Law (11.101/05), especially regarding the introduction of judicial reorganization and participation of creditors in this procedure. Thus, this article studies the possibility of recognition of the existence of “Cram Down” in the Brazilian bankruptcy system, as well as its possible implications, from a perspective of Law and Economics defended by Richard Posner.