O abuso do direito de voto na assembleia geral de credores: uma análise empírica

Abstract

The Law n. 11.101/2005, on February 09, 2005, change significantly the previous Brazilian bankruptcy system, introducing the principle of business preservation as a guide for the Reorganization and, at the same time, defining that would be up to the creditors, through a vote in the Meeting of Creditors, to decide on the future of the company in crisis. Nonetheless, the legislator lacked a deeper reflection on the hypotheses of abuse of the right to vote by the creditor, it would be up to doctrine and to the jurisprudence the treatment of the subject though a systematic interpretation of the legal system. The situation just changes with the inclusion of § 6th to the article 39 of Law n. 11.1010/2005 for the Law n. 14.112/2020, which expressly regulated the abusive exercise of the creditor's vote in the Meeting of Creditors, defining that the vote would be considered null for abusiveness only when it is manifestly exercised to obtain an illicit advantage for itself or for others. Then, this paper sought to identify the main fundamentals of the abuse of the right to vote by the creditor, through a bibliographic review and concluding that the exercise of the vote by the creditor is limited by good faith, by the duty of loyalty among other creditors and, above all, by the interests of the creditor as a creditor. From this bibliographic review, the paper used an empirical, documental and quantitative analysis to understand how the doctrinal and legal criteria for the declaration of abusiveness of the vote by the creditor in the Meeting of Creditors are being applied by the national jurisprudence before and after of the insertion provided for Law n. 14.112/2020. From the collect and the analysis of the data, it is concluded that the specific rule brought by the new law does not seem to have been relevant for the jurisdictional treatment of the subject, already existing a process of maturity of the theme started in the second half of the last decade. On top of that, it was observed that § 1st of the article 58 of Law n. 11.101/2005, named for the doctrine of Cram Down, seems be used as a toll for homologation of the Reorganization Plan and overcoming the abusive vote regardless of compliance with the requirements set out in the same rule. At last, it was also observed that the specialization of the courts tends to have an impact on the jurisdictional discussion on the subject, since specialized courts tend to have a more robust argumentation, with a greater indication of criteria for measurement vote abusiveness and less flexibility of the rules for the application of Cram Down.