Do pedido autônomo da falência pelo estado: uma análise da legitimidade ativa da fazenda pública em requerer a falência.

Abstract

This paper examines the controversy surrounding the active legitimacy of the Public Treasury to autonomously request the bankruptcy of the business debtor, which constitutes the core of this study. It analyzes the compatibility of such actions with the purpose of bankruptcy law and the constitutional and infra-constitutional principles that govern it. The issue arises from the wording of Article 97, item IV, of Law No. 11.101/2005, which provides that “any creditor” can request bankruptcy, without expressly indicating whether the Public Treasury is included in this category. The lack of specific regulatory provisions, coupled with the absence of unanimous jurisprudence, contributes to a potential scenario of legal uncertainty, allowing divergent interpretations on the matter. In this context, the main doctrinal and jurisprudential theses both in favor of and against the active legitimacy of the Public Treasury to autonomously request bankruptcy were analyzed, highlighting the complexity of the subject. In view of the absence of an express rule addressing the matter, the divergence in existing interpretations, and the insufficiency of literal interpretation to resolve the hermeneutic impasses of the provision in question, the importance of systematic interpretation is highlighted. This approach seeks to align the content of Article 97, item IV, of Law No. 11.101/2005 with the objectives of the bankruptcy process and the principles that govern it, ensuring coherence with the Brazilian legal system. The analysis also encompasses general aspects of tax credit, its collection instruments, and the manner in which the Public Treasury operates within the bankruptcy context. In conclusion, it is determined that the interpretation that excludes the active legitimacy of the Public Treasury to request bankruptcy through an independent petition should prevail, as it is more suitable to the purposes of bankruptcy legislation and the principles that underpin this institution.