Da legitimidade fazendária para requerer a falência: análise principiológica centrada no prisma da preservação da empresa e demais princípios do ordenamento jurídico brasileiro

Abstract

The bankruptcy is the plural execution by which the creditors can receive their credits by liquidating the patrimony of the insolvent business debtor. The Law n. 11.101/2005, in its article 97, IV, establishes that any creditor has legitimacy to require the bankruptcy. Through this cenario, the present paper investigates the possibility of the Public Treasury to fill the hypothesis described up. That investigation, in addition of exposing the doutrinary and jurisprudential bases of both opposite thesis about this theme, also investigates the historical formation of the problem as a whole, doing this last thing through the presentation of the historical evolution both of the Public Treasury as the comprehension of the bankruptcy law. There is also in the center of this analysis the study about the tax credit while the debt that is fundamenting the bankruptcy requirement, investigating each one of its privileges to investigate its compatibility with bankruptcy’s execution. In the end, the paper concludes in favor of the Public Treasury’s ilegitimacy to require the bankruptcy, doing that while looking to the incompability of this pretensions with several principles of brazilians juridical order, such as the business preservation, isonomy, impessoality, besides this pretension also eventually cause several processual problems.