STJ INOVA EM DECISÃO SOBRE RECUPERAÇÃO JUDICIAL

Por Circuito MT

A Terceira turma do Superior Tribunal de Justiça (STJ), confirmou, recentemente em julgamento ocorrido no dia 18 de maio de 2017, ao desacolher os Embargos de Declaração de 3 instituições bancárias,  que a supressão das garantias reais e fidejussórias deve ser aplicada mesmo àqueles que não compareceram à assembleia-geral. Ou seja, agora nos processos de recuperação judicial as decisões em assembleia são soberanas e devem ser acatadas por todos.

Os Ministros Marco Aurélio Belizze, Moura Ribeiro e Paulo de Tarso Sanseverino, entenderam que uma vez que há premissa específica que prevê a anuência exigida pela Lei de Recuperação Judicial foi alcançada pela aprovação do plano, isso vincula todos os credores tenham eles aprovado ou não.

A decisão ocorreu em processo da distribuidora de produtos alimentícios Dibox, com sede em Cuiabá, Mato Grosso. A empresa tem aproximadamente R$ 42 milhões, de créditos em garantia.

É preciso lembrar que a Lei de Recuperação Judicial (Lei N. 11.101/2005 ) é sistêmica, e tem alicerce sobre um conjunto de fundamentos jurídicos destinados exclusivamente à manutenção responsável da atividade empresária. A sua aplicação, portanto, não deve ficar limitada a uma única situação jurídica. Pelo contrário, deve o seu operador dar-lhe dimensão total, para garantir efetiva utilidade à norma, o que exige a análise de todo o texto da lei.

Os ministros, ao confirmar decisão tomada em acórdão em novembro de 2016, entenderam que a aprovação do plano, em todas as classes, já é suficiente para se cumprir a exigência da lei.  Assim, se o plano relacionar a previsão da supressão das garantias e for devidamente aprovado, nada mais justo que acatar a decisão colhida na Assembleia Geral dos Credores, até porque é fato que as decisões tomadas em conjunto  são as mais democráticas possíveis. Tendo em vista que atende aos interesses de todos.

O Superior Tribunal de Justiça, em decisão acertada,  consagrou o princípio da utilidade da lei. E  ao mesmo tempo permitiu a liberação de bens e das obrigações dos coobrigados, entendeu, acertadamente, que esta medida permitirá o ingresso de novos fomentadores ao negócio e gerará condições de captação de recursos para o pagamento do plano.

Portanto, pode-se afirmar – com segurança – que uma vez homologado o plano que previu o levantamento das garantias ou a sua inexigibilidade pelo período de cumprimento, não poderá o Magistrado, determinar a sua exclusão, sob pena de inviabilizar a própria Recuperação Judicial.

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