A cessão fiduciária de direitos creditórios na sistemática da recuperação judicial brasileira: a posição do credor fiduciário

Abstract

The objective of this work is the analysis of the fiduciary cession of credit rights in the judicial recovery and the way the Court of Justice of Ceará and the Superior Court of Justice have been applying it. The research was done on jurisprudential and doctrinal bases, still being pure, with a qualitative and quantitative approach as well as descriptive and exploratory objectives. The study is divided into three chapters. The first one is related to the importance of the advent of the new bankruptcy law, which, seeking to protect the relationships in the credit market, ends up excluding the guarantee in question from the judicial recovery, still assessing some maintenance and innovation of such in relation to its predecessor. Yet in the second one, the controversies pertaining to the fiduciary cession are investigated by explaining their origins, concept, and general prediction under the national legal system as well as the specific provision for judicial recovery under Law n°. 11.101/05, by also verifying the existing factual distinction among these type of creditors. Furthermore, one ascertains the possibility of enforcement these guarantee during the stay period of 180 days as well as the differentiation in the treatment given to the lien of credit rights and debt securities and the fiduciary cession in the recovery process. In the last chapter, one verifies the tendency of the Court of Justice of Ceará, to submit the fiduciary cession of credit rights to the recovery plan, and the Superior Court of Justice, to exclude from it, thus facing up the main points of decisions and their consequences. In this pathway, one emphasizes the harm that might emerge from the non-application of some commands from the new law by the interpreters. Thus, the conclusion is that the correct interpretation of the provisions in Art. 49, § 3°, Law n°. 11.101/05, covers the credits guaranteed by fiduciary cession, which shall not be subject to the effects of the judicial recovery.