Aferição in concreto dos elementos do ato subjetivamente ineficaz para os credores e para a massa falida na ação revocatória

Abstract

This dissertation deals with revoking action while a necessary instrument for declaring the subjective inefficacy of fraudulent acts performed to the loss of the bankrupt estate and the creditors, prior to bankruptcy declaration, as per article 130, with special regard to the necessary distinctions from art. 129, both, in Law #11.101/2005, the law which regulates judicial and extrajudicial recovery and the bankruptcy of the entrepreneur and of the corporation. The research work is justified by the potential significant number of bankruptcy proceedings that shall be filed in the country and, markedly, on account of expected failure by the majority of judicial reorganization requests currently ongoing. The main purpose of this research work is the concrete assessment of the (material) elements of the subjectively ineffective for the creditors and for the bankrupt estate, as from document and jurisprudence analyses. Starting from the inductive method the research points out the probable causes of revoking action denial, considering the difficulties inherent to evidence collection for the measure discovery process; judicial administrator’s lack of skill in filing the revoking action; information asymmetry between the bankrupt estate and the revoking action respondent; lack of standardization by the courts regarding requests for inefficacy declaration and, finally, assessing the main elements necessary for a grounded decision of the measure. By means of analyzing one hundred (100) judicial precedents, it was determined that there is oversight on the part of judges and courts towards appropriate fitting of the concrete case to legal assumption, might because led to judicial activism in favor to the parties interested into the convalidation of the legal business which inefficacy is seek. The joining of these factors leads to a greater number of revoking actions being unsuccessfully based on fallacious sophisms, and the equivocal application of the legal device, such as as well as on the measures related to objective declaration inefficacy or subjective declaration inefficacy and claim proof of these elements so as to achieve the intended inefficacy