Aspectos da reforma da Lei de Recuperação Judicial

Por Jota.Info

promulgação da Lei de Recuperação Judicial e Falência (11.101), em 09 de fevereiro de 2005, significou um importante passo para a modernização da legislação de insolvência brasileira. Naquela época, os operadores do direito celebraram as mudanças e o mercado sentiu que o Brasil possuía finalmente uma ferramenta verdadeiramente útil para o soerguimento do empreendimento em crise.

Contudo, a experiência obtida com a aplicação da Lei nesses últimos 12 anos, evidenciou situações que ainda precisam de melhor regulação e outras que necessitam se adequar à realidade do mercado, sob o risco de em breve termos uma legislação desatualizada que, ao invés de solucionar conflitos equacionando interesses de credores e devedores, trará mais insegurança jurídica, um dos fatores que mais afasta investimentos do mercado brasileiro.

Desta maneira, no final do ano passado, o Ministério da Fazenda criou um grupo de trabalho, composto por advogados, juízes, procuradores, entre outros atores de interesse, para sugerir mudanças profundas na Lei de Recuperações Judiciais e Falências.

De longe podemos dizer que o trabalho realizado por este grupo é o mais abrangente e atualmente o mais importante. O documento final, que deverá ser apresentado ao Congresso nos próximos dias, caso resulte em uma real alteração legislativa, impactará profundamente os casos de reestruturação de empresas no País.

Primeiramente, o texto abrange o leque de empresas autorizadas a pleitear a recuperação judicial ao substituir na Lei os termos “empresário” e “sociedade empresária” por “agentes econômicos”. Somente esta alteração irá permitir, por exemplo, que o produtor rural possa ser autor de um pedido de recuperação judicial, situação que há muito tempo vem sendo perseguida pelo agronegócio. A importância desta mudança tem caráter óbvio, uma vez que o setor sempre apresentou garantiu bons números à economia brasileira.

Outra modificação que merece destaque é a sujeição dos créditos garantidos por alienação fiduciária aos efeitos do plano de recuperação judicial. Atualmente, grande parte do passivo das empresas em recuperação judicial tem este tipo de garantia, o que, nos moldes atuais, resulta em grandes dificuldades à efetiva recuperação destas empresas. Isso faz com que esta proposta seja uma das mais importantes e polêmicas do novo texto, uma vez que os bancos se opõem veementemente a isso.

Estes temas são os que mais despertam interesse do mercado e que mais criam embates doutrinários. Porém, existem outras alterações que merecem atenção de todos os agentes envolvidos, como: (i) a regulação para o DIP Financing, recursos concedidos à empresa devedora após o pedido de recuperação; (ii) a criação de varas regionais especializadas; (iii) a obrigatoriedade de aplicação da perícia prévia ou constatação prévia pelo magistrado; (iv) a possibilidade do credor manifestar sua vontade de forma eletrônica; (v) a mudança no prazo assinalado para apresentação do plano de recuperação, aumentando-o dos atuais 60 para 90 dias; (vi) a probabilidade expressa de conversão de dívida em capital e, ainda, (vii) um artigo que tenta delimitar os contornos do que seria um “voto abusivo”.

A expectativa é que o Congresso Nacional aproveite bem o trabalho que foi realizado por este grupo de especialistas e atue de forma satisfatória. O Brasil tem muito a ganhar com discussões que visem deixar nossa legislação de insolvência mais sintonizada com a evolução dos negócios, contribuindo decisivamente para que tropeços possam ser superados e empresas se recuperem ou tenham seus ativos operando de forma saudável, gerando cada vez mais renda e postos de trabalho.

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