Limites e fundamentos para a aplicação da teoria da consolidação substancial como instrumento de maior eficácia na recuperação judicial de grupos empresariais

Abstract

The purpose of this paper is to analyze the business groups in Brazil and to supervise them in judicial reorganization proceedings, especially with regard to the theory of substantive consolidation. The main objective is to verify which factual hypotheses should lead to substantive consolidation within the scope of the judicial recovery process, delimiting the limits and the grounds for the application of the institute. In addition, it seeks to understand the discipline regarding the regime of responsibility of groups in Brazilian law, compared to other systems adopted by foreign legislations, and understand the reasons for the wide use of the groups of fact, while the groups of law have low adhesion. It also seeks to analyze controversial aspects inherent to the judicial recovery of groups in Brazil, considering the absence of a specific regulation on the subject in Law 11.101/2005, in particular the definition of the competent court, the need to comply with the legal requirements for filing of the request by all the members of the group and the effects of the procedural consolidation on the creditors' relationship, the judicial recovery plan and the assemblies. Next, we discuss the development of the theory of substantive consolidation in the United States and the criteria considered by American judges, courts and doctrine for determining the measure, before proceeding to verify its application in Brazil as early as the first years of validity of Law 11.101/2005, a period in which it is said that there was a silent substantive consolidation. The present work, therefore, seeks to establish a critical judgment of the two main ideas for the contextualization of substantive consolidation in Brazil until then, that of Sheila C. Neder Cerezetti and that of Joel Luís Thomaz Bastos. It seeks to compare the propositions of the doctrine with the most current understanding of Brazilian judges and courts, as well as with the proposals of Bill 10.220/2018, which deals with proposals for reform of Law 11.101/2005 and contains a specific discipline for the regulation of judicial reorganization of business groups. The analysis is supported by historical, comparative and dialectical methods, as well as by a large number of judicial decisions. In the end, among other conclusions, it is argued that financial interdependence between components of the same corporate group, under judicial reorganization, must also, in addition to the hypotheses of abuse of legal personality - asset confusion and misuse of purpose - serve as a substantive consolidation in order to meet the interests of the group's creditors as a whole and the greater possibility of preserving the social benefits arising from the maintenance of the business activity.