Banca de DEFESA: Luciano Ramos de Oliveira

Uma banca de DEFESA de MESTRADO foi cadastrada pelo programa.
STUDENT : Luciano Ramos de Oliveira
DATE: 08/08/2022
TIME: 08:00
LOCAL: https://teams.microsoft.com/l/meetup-join/19%3ameeting_MDU5MzNmOGUtZWJjYi00N2FmLWExMGEtYjVmNDVjYzJl
TITLE:

"COMMERCIAL RULES FROM A DEFEASIBILITY PERSPECTIVE: A STUDY ON THE APPLICATION OF PRINCIPLES TO THE STAY PERIOD OF THE JUDICIAL REORGANIZATION LAW".

KEY WORDS:

Law No. 11.101/2005. Stay period. Rule and principles. Commercial Law. Bankruptcy Law.

PAGES: 115
BIG AREA: Ciências Sociais Aplicadas
AREA: Direito
SUMMARY:

The purpose of this work is to analyze paragraph 4, article 6 of Law 11.101/2005, the Brazilian Bankruptcy Law. The article under analysis deals with the non-extendability of the stay period. Article 47 of the same legal statute provides for the preservation of the company. From a theoretical point of view, their contents reflect, respectively, a rule and a principle, both legal categories of a normative nature, whose general characteristics are distinct: on one hand, rules are concrete and prescriptive; on the other, principles are abstract and have a broader meaning. The research was motivated by recent rulings by the Superior Court of Justice based on the principle of art. 47, to the detriment of the determination of §4, art. 6. The cases gave rise to the following issues: can the detailed business rule have its effects altered by the judge at the time of its application? Which cases may have the application of the rule made more flexible by the judge, to the point of replacing it by a principle-based application? In Commercial Law, given the legal security required for good economic organization, how can abstract or broad directives be used? The general objective of the study is to verify, from a theoretical and jusphilosophical point of view, how the decision of the Superior Court of Justice that authorized, in Jurisdiction Conflict no. 79.170/SP, the extension of the stay period based on a principle, disregarding the detailed rule, can be defined. For this purpose, Commercial Law was described in order to emphasize, historically, the search for its autonomy, which is essential to circumscribe the proposed analysis to its peculiarities. The Brazilian Bankruptcy Law was characterized from the perspective of Comparative Law. Rules and principles were approached theoretically to better subsidize the path followed by the Superior Court of Justice in its rulings, and the stay period was seen in the context of the positivist school, with a focus on utilitarian, conservative and descriptive positions. Judicial discretion and the application of mercantile rules were discussed from the perspective of legal theory, and the application of the specific mercantile rule was presented both in the global and Brazilian experiences. The research was bibliographic and documentary, and the conclusion was that the rulings of the Superior Court of Justice did not result from legal interpretation but rather from the creation of a rule based on a principle, although overlooking the conditions and circumstances of the cases.

BANKING MEMBERS:
Externo à Instituição - MARCELO VIEIRA VON ADAMEK - USP
Externo à Instituição - PAULO DIAS DE MOURA RIBEIRO
Externo à Instituição - RICARDO JOSÉ NEGRÃO NOGUEIRA - PUC - SP
Presidente - 1012528 - JOAO COSTA RIBEIRO NETO