Bankruptcy. The certainty as to the irreversibility of the decision that declared the bankruptcy of a debtor company allows the enforcement actions brought against it, stayed by reason of the judicial reorganization proceedings, to be extinguished.
Thus, the Third Panel of the Superior Court of Justice (STJ) upheld the decision of the court of origin that extinguished actions brought by Petrobras Distribuidora against a fuel station and that were stayed by reason of the reorganization.
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In the appeal rejected by the STJ, Petrobras Distribuidora alleged that articles 6 and 99 of the Bankruptcy and Reorganization Law prescribe the stay of these demands, and not the extinction, as was determined by the competent court.
For Justice Nancy Andrighi, the reporting justice for the special appeal, the stay of enforcement actions is an express determination in law, but, despite this fact, the extinction, within the limits proposed in the vote, does not prove incompatible with the legal order.
“It is not being proposed that such proceedings should be extinguished ab initio, instead of being stayed. What is being argued is that, after the formation of a judgment of certainty regarding the irreversibility of the decision that declared the failure, there is no practical sense in keeping the individual enforcement actions stayed, given the impossibility of their success,” the reporting justice reasoned.
According to the justice, the eventual resumption of the stayed individual enforcement actions translates into an innocuous measure, as they are claims lacking real possibilities of success.
“In the hypothesis that there has been full payment of the credits, the individual enforcement claim would be satisfied, which would give rise to its extinction. In the second hypothesis, however, the insufficiency of the proceeds of the realized assets would inexorably lead to the practical unfeasibility of continuing the stayed enforcement actions, in view of the exhaustion of the resources capable of satisfying the respective obligations,” the reporting justice said.
The declaration of bankruptcy entails the extinction of the legal entity
The justice recalled that the declaration of bankruptcy entails the extinction of the legal entity of the business company, derived from its total dissolution, meaning that even if it were possible to resume enforcement, “such claims would, in the last analysis, lack a basic admissibility prerequisite capable of enabling judicial protection, given the nonexistence of the passive subject against whom to demand the fulfillment of the obligation.”
Source: Press Office of the STJ
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