A execução dos créditos não sujeitos à recuperação judicial

Abstract

The study developed in this master's dissertation aims to analyze the credits that are not subject to judicial restructuring indicated in the §§ of art. 49 of Law n. 11.101 of February 9, 2005, in order to determine whether creditors holding such credits can demand the collateral guarantees provided to secure the payment of such credits or file an enforcement proceeding to request the payment of those credits outside the debtor's judicial restructuring proceeding by seizing the assets of the debtor. In the first part of this work, in accordance with the current legislation, it is indicated in detail which non-subject credits are analyzed in this dissertation, as well as identified the different interpretations existing in doctrine and judicial precedents regarding whether or not the creditor holding those non-subject credits can initiate an enforcement claim to collect their credit outside of the debtor's judicial restructuring by seizing the debtor's assets. In front of the divergences in the interpretation of the legislation regarding the possibility of the creditor filing an enforcement proceeding against the debtor to collect assets in order to pay: (i) the credits secured by fiduciary alienation; (ii) lease credit; (iii) credit secured by retention of title; (iv) credit from a sale and purchase contract involving real estate with an irrevocable and non-retractable clause; and (v) credit arising from an advance on a foreign exchange contract, despite the recent reform of the legislation from 2020, new changes to Law n. 11.101 of February 9, 2005, are proposed to clarify such controversies identified in doctrine and judicial precedents. The proposed changes aim to resolve the divergences found, leading to greater legal certainty and predictability in the Brazilian credit market, which benefits the society and promotes economic development in the country