Reflexões sobre a legitimidade ativa da Fazenda Pública para propor a decretação de falência em razão do crédito tributário

Abstract

The 11.101/05 law, actual bankruptcy legislation, remodeled the business insolvency and established the maintenance of viable companies as a priority faced with the activities’ slump. With the revision of the old bankruptcy decree law, the aim is to promote the preservation of firms in difficulty, due to the socio-economic benefits of keeping them in the market, featuring the known social function of the company. However, in situations where the business viability is affected as well when harmful acts are performed, causing damages to the State and the community, there is no way out unless bankruptcy. Considering the section IV of article 97 of the new Recovery Law, which explicitly stipulate that any creditor is legitimate to propose the declaration of bankruptcy of the insolvent debtor, it will be stated and opposed, in this following academic essay, the legal precedents of the Federal Superior Court of Appeals which stands up for the illegitimacy and lack of legal interest of the Federal State to request the insolvent business companies crack. Therefore, with the changes introduced by Complementary Law No. 118/05 in the National Tax Code, the Public Treasure must appear on the active legitimated list to postulate the bankruptcy, in respect of the basic requirement to pay taxes, the bankruptcy regime’s importance for the National Tax System effectiveness and the Free Competition.