Exame da aplicabilidade da lei 11.101/2005 em empresas públicas e sociedades de economia mista

Abstract

This study aims to analyze the possibility of the application of Law No. 11.101/2005 (Bankruptcy and Judicial Recovery Law) to Public Companies and Mixed Economy Societies, in accordance with the paradigm between what is explicitly stated in the literal wording of item II of article 2 of this legal provision—which expressly prohibits the application of bankruptcy legal prerogatives to state-owned enterprises—and § 1 of article 173 of the Federal Constitution, which subjects the aforementioned companies to the same legal regime as private companies. To this end, the general concepts and characteristics of bankruptcy, judicial recovery, public companies, and mixed economy societies are presented. In this regard, the differentiation between the legal regimes of state-owned companies—those providing public services and those engaging in economic activities—is examined, in order to highlight the distinct legal treatment given to each. Furthermore, the paper analytically examines the systematic legal arguments of the three competing doctrinal schools developed regarding the exclusion rule of state-owned companies from the national bankruptcy law: (i) in favor of exclusion; (ii) partially in favor of exclusion; and (iii) against exclusion, based on the interpretation of the constitutionality of article 2, I, of Law 11.101/2005. Additionally, the extreme relevance of discussing this topic from the jurisprudential perspective of the Federal Supreme Court is presented, in the case of General Repercussion Theme No. 1101, in which the existence of general repercussion for the application of bankruptcy and judicial recovery regimes to stateowned companies was recognized.