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Date: January 30, 2020
Posted by: CPDMA Team

STJ prevents constriction of assets of rural producer who asks for judicial recovery

Considering the danger of delay, the president of the Superior Court of Justice, Minister João Otávio de Noronha, granted an injunction to suspend any constrictive and expropriation acts of assets of a rural producer that seeks to apply the rules of the Judicial Recovery and Bankruptcy Law to allow its judicial recovery.

When analyzing the request for provisional protection, Minister João Otávio de Noronha highlighted the relevance and originality of the issue - the application of the rules of judicial recovery in the case of rural producer -, drawing attention to the absence of precedents on the subject.

"The legal thesis under debate in the case file has broader contours than the aggravated decision suggests, and deserves a more accurate study, especially as it involves an issue that, in addition to being controversial, is of unequivocal importance for the country", highlighted Noronha.

It is worth remembering that, according to the Civil Code, registration with the Commercial Board of rural entrepreneurs and rural entrepreneurs is optional (articles 971 and 984).

However, the law that regulates judicial reorganization (Law 11.101/05) establishes that one of the requirements for claiming reorganization is that the plaintiff "regularly carries out his activities for more than two years" (Article 48) and "instructs his with the debtor's certificate of regularity in the Public Registry of Companies" (article 51).

Thus, the judicial recovery of those who exercise rural activity gives rise to at least two issues. First, if the entrepreneur/business company that carries out rural activity depends on registration with the Board of Trade to apply for recovery. And, if so, whether the record must have been obtained for at least two years prior to filing for judicial reorganization.

concrete case

According to the procedural information, the producer faced difficulties in the soybean, cotton and corn crops with the appearance of new pests and diseases. He stated that these problems led to a lack of liquidity, exacerbated by the fall in commodity prices and the rise in the dollar, making the payment of international financing unfeasible.

The producer sought to negotiate the debts through the judicial reorganization process - granted in the first instance, but rejected by the Court of Justice of Mato Grosso on the grounds that the minimum period of two years of activities required in article 48 of the Law on Judicial Recovery and Bankruptcy.

In the special appeal, he questions the interpretation given to the rule of the aforementioned article 48, arguing that, for the purposes of granting the recovery, it would be enough to obtain registration with the commercial registry, regardless of the date of its formalization, provided that it is possible to prove the performance of the business activity in the biennium prior to the recovery process.

The rural producer stated that he has already obtained a favorable decision on the admissibility of this appeal, but he runs the risk of serious damage that cannot be recovered, if the decisions on constriction and expropriation of assets are complied with, which would make rural activity unfeasible.

When granting urgent relief, President João Otávio de Noronha cited a decision by Minister Luis Felipe Salomão in a similar case, in which it was highlighted that the STJ had not yet analyzed the possibility of applying the rules of the Judicial Recovery and Bankruptcy Law in the case of rural producers.

Noronha stated that the theses presented, in addition to reinforcing the importance of the subject and recognizing the lack of jurisprudence, are able to reveal the smoke of good law, one of the arguments defended by the rural producer in the request for provisional protection.

For the president of the STJ, there is no doubt about the danger of delay in the event of rejection of the guardianship. "As for the periculum in mora, there is no doubt that the continuation of the actions in progress against the applicant, some with the determination of constrictive and expropriation acts, seizure of assets, removal of assets, among others, may cause damages that cannot be repaired in the event of not granting the injunction and rendering innocuous any favorable decision in the special appeal", concluded the minister.

Source: Conjur.

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