Cíntia Solé
Lawyer at Marcos Martins Advogados
The circumstantial prohibition of acts against the assets of the company under reorganization, when there is a Judicial Reorganization plan under execution, is a very controversial issue that has required in-depth study by doctrine and case law since the advent of Law 11.101/05.
Unlike what is observed in bankruptcy, although there is no vis atractiva in Judicial Reorganization , the material acts of execution against the company under reorganization must be carried out in coherence with the judicial reorganization plan.
This implies that there is no legal determination that grants the reorganization court the power of attraction so that it becomes competent to assess the other claims that are distributed against the reorganized company, so that the material acts of execution against the company will be carried out in a non-ordinary manner by the other courts.
However, the multitudinous nature of Judicial Reorganizationimplies that the collective interest prevails over the individual interest of one of the creditors, fostering the need to adopt protective measures for the company under reorganization, in order to preserve the interests of both the other creditors and the other beneficiaries of the company’s maintenance.
This is because, in order to enable the company to recover and settle its debts, the adoption of measures to dispose of its assets must be very well planned and take place in accordance with the provisions of the reorganization plan.
For this reason, the principle of preserving the company has gained prominence in court decisions which recognize that material acts of execution must be carried out in coherence with the reorganization plan, while reinforcing the understanding of the reorganization court’s jurisdiction against measures which could compromise compliance with the Judicial Reorganization plan.
In this sense, the Superior Court of Justice has taken the position that the reorganization court has jurisdiction to decide on acts of seizure of assets of the company undergoing Judicial Reorganization, regardless of whether or not it is subject to the procedure, in the terms of the various judgments transcribed below:
“CONFLICT OF JURISDICTION. INTERNAL APPEAL. TAX ENFORCEMENT. JUDICIAL REORGANIZATION. ENFORCEMENT ACTIONS AGAINST THE ASSETS OF THE COMPANY UNDER JUDICIALREORGANIZATION. LAW N. 13.043/2014. (…) However, although the continuation of the tax execution and any embargoes, pursuant to article 6, paragraph 7, of Law 11.101/2005, must take place before the competent federal court – which will be responsible for all procedural acts, including the order of summons and attachment -,the practice of constrictive acts against the assets of the reorganized company falls within the competence of the judicial reorganization court, in view of the basic principle of preservation of the company. Precedents”[1]. (emphasis added)
“INTERLOCUTORY APPEAL. ENFORCEMENT OF JUDGMENT. MEASURES TO SEIZE COMPANY ASSETS. EXTRAJUDICIAL CREDIT. JURISDICTION OF THE JUDICIAL REORGANIZATION COURT. PEACEFUL UNDERSTANDING OF THE STJ. – As the Superior Court of Justice has consistently held, although a claim arising after the debtor has filed for judicial reorganization is excluded from the plan and its effects, according to art. 49, caput, of Law no. 11. 101/2005, the control of acts of asset constriction relating to so-called extrajudicial claims is linked to the decisions of the universal court – It is impossible for other judicial bodies to issue enforcement acts simultaneously with the reorganization or bankruptcy court, so as to constitute a positive conflict of jurisdiction – Rejection of the attachment request upheld on different grounds. DISMISSED THE INTERLOCUTORY APPEAL. UNANIMOUS[2].(emphasis added)
“INTERLOCUTORY APPEAL IN THE CONFLICT OF JURISDICTION. JUDICIAL REORGANIZATION. LABOR ENFORCEMENT. CONTINUATION. ACTS OF CONSTRICTION. JURISDICTION OF THE JUDICIAL REORGANIZATION COURT. (1) Once the judicial reorganization has been granted, the bankruptcy and judicial reorganization court has jurisdiction to proceed with enforcement actions related to labor claims filed against the company under reorganization. (2) In such cases, the Labor Court’s jurisdiction is limited to the determination of the respective claim (cognizance procedure), and the aforementioned court is prohibited from carrying out any action that compromises the assets of the company under reorganization (enforcement procedure). 3. internal appeal not granted” [3](emphasis added)
Thus, the position of the Superior Court has been consolidated in strengthening the jurisdiction of the reorganization court to preserve not only the assets of the debtor in reorganization, but also its possibility of financial and economic re-establishment so that it can once again achieve its social function.
As a consequence, the use of other courts to seize assets of companies undergoing reorganization has been prohibited, given the risk of making it impossible to continue executing the debtor’s reorganization plan .
There has been much debate about the need to reform Law 11.101/05 and, perhaps, any reform will be an opportunity for the legislator to affirm this jurisprudential trend of favoring the preservation of companies and the effectiveness of judicial reorganization, the importance of which for the economy and the market is even clearer in the current moment of serious crisis resulting from the pandemic.
Marcos Martins Advogados is attentive to this issue and is ready to act in the defense of collection actions and executions against companies in Judicial Recovery to help them face this moment of crisis that has been aggravated by the Covid-19 pandemic.
Any questions? Talk to our lawyers and get advice.
[1] STJ, Ag Int no CC 153.006, Rel. Minister Luis Felipe Salomão, Second Section, judged on 22/2/2018, DJe 27/2/2018.
[2] Interlocutory Appeal No. 70075836346, Tenth Civil Chamber, RS Court of Justice, Rapporteur: Jorge Alberto Schreiner Pestana, Judged on 26/04/2018.
[3] STJ – Ag Int no CC: 147032 RJ 2016/0151453-4, Rapporteur: Minister Ricardo Villas Bôas Cueva, Date of Judgment: 13/09/2017, S2 – SECOND SECTION, Date of Publication: DJe 19/09/2017.
