Recuperação Judicial de Empresas e Lei Anticorrupção: impactos na disciplina da venda de ativos na recuperação judicial empresas envolvidas em atos de corrupção

Abstract

This dissertation aims at verifying the Law n. 12.846/2013 (Anti-corruption Law or "LAC") impacts on the asset s disposal in the context of judicial reorganization proceedings, instituted by Law 11,101 of 2005 ("LRF"), of companies involved in acts of corruption to the detriment of Public Administration in Brazil. Particularly, these impacts were analyzed in the most relevant judicial reorganization proceedings in Brazil, namely, the ones which involves companies with straight relation with Public Administration. As objectives, the dissertation sought to describe how the interest s succession rules provided in Brazilian Law System impact on restructuring of companies in crisis and demonstrate the impasse which arose from LAC promulgation on such restructuring cases. Insofar LAC prescribes as general rule the subsistence of liability to the successor for pecuniary penalties applied to companies that have committed corruption acts, while LRF rules the acquisition free and clear of interests. In addition, the dissertation has pointed out criteria for efficient interpretation construction to solve the impasse emerged, observing the rules of Legal Hermeneutics, concepts evaluation concerning harmonization of conflicting norms and verifying how, in case-law, the conflicts which have involved LRF were decided by Courts. Those impasses that arose from the LAC promulgation regarding the discipline of asset s disposal in judicial reorganization proceedings, have made it necessary to construct an efficient interpretation in order that these companies restructuring can develop itself properly, apart from the uncertainties resulting from these encumbrances. After 2013, the LAC promulgation year, as well as a period in which the participation of Public Administration in the companies has substantially increased, it was noted that the main impact might have been the fact that there were no further relevant asset divestitures or UPIs acquisitions in judicial reorganization proceedings of these companies. Those assets and UPIs have come to be lemons, according to George Akerlof's Theory. If, on the one hand, LAC represents an important milestone in world s engagement against corruption practice, on the other, the creation of possible obstacles for those relevant companies to use an important mean of restructuring (asset disposal), may cause negative impacts on the economic development, as well as prevent LAC's own legal precepts. This is because there will be no reimbursement of damages caused to Public treasury if the company that has committed acts of corruption if the company is not able to reorganize itself to further fulfill that obligation.