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Date: February 1, 2021
Posted by: CPDMA Team

The definition of the STJ regarding the subjection of the credit in the judicial reorganization by the date of the taxable event

In one of the last judgments of 2020, the STJ confirmed the guidance that had been observed in its precedents: the date of the event triggering the obligation is the time frame for subjecting the credit to judicial reorganization (even if the settlement will occur at a later date).

The thesis set out in Theme 1051, submitted to the rite of repetitive appeals, ends controversy (mostly observed outside the universal judgment) on the interpretation of art. 49, caput, of Law nº 11.101/2005, which involved claims related to labor credit, provision of services and civil liability. 

In May 2020, the STJ had determined the suspension of all pending cases, individual or collective, that dealt with the issue related to the interpretation of article 49, caput, of Law no. 11.101/2005, “in order to define whether the existence of the credit is determined by the date of its triggering event or by the final judgment of the judgment that recognizes it”, affecting Special Resources No. 1,843,332/RS, 1,842,911/RS, 1,843,382/RS, 1,840,812/RS and 1,840,531/RS as representative of the repetitive controversy described in Topic 1051. 

For purposes of verification about the subjection of credit, the wording of article 49, caput, of Law No. 11,101/05 provides that "all credits existing on the date of the request are subject to judicial recovery, even if not overdue". In the case of illiquid amounts, the reading of the aforementioned art. 49 came together with the rule of § 1 of art. 6 of Law 11.101/05, which establishes that "will proceed in the court in which the action that demands an illiquid amount is being processed".

Although Theme 1051 opened debate to define the issue in terms of repetitive appeal, the established thesis - "for the purpose of submission to the effects of judicial reorganization, it is considered that the existence of the credit is determined by the date on which its triggering event occurred" - consolidates guidance adopted for a long time which, by the way, was already observed among the “ready surveys” available on the STJ website (1) - a tool that allows real-time search on certain legal topics, organized according to the branch of law or predefined groups ( recent affairs, notorious cases and theses of repetitive appeals). 

According to the Conducting Vote of the judgment of Special Appeal No. 1,840. 531-RS (2019/0290623-2), reported by Minister Villas Bôas Cueva, “Once the triggering event has occurred, the right to credit arises, with performance and liability being subsequent elements, not interfering with its constitution. Therefore, in the event of the triggering event, the existing credit is considered, being subject to the effects of judicial reorganization.”

Also, according to the Minister:

“The existence of credit is directly linked to the legal relationship that is established between the debtor and creditor, the bond between the parties, since it is based on it that, after the triggering event, the right to demand the provision (credit right) arises. . 

Thus, the provision of work, in the employment relationship, gives rise to the right to credit; in the service provision relationship, the performance of the service.

(...)

In contractual civil liability, the legal bond precedes the occurrence of the illicit that gives rise to the duty to indemnify. In non-contractual legal liability, the bond between the parties is established concomitantly with the occurrence of the harmful event. In any case, once the harmful act has occurred, the right to credit for repairing the damages arises.”

References to entirely relevant issues, since the sentence or final judgment, among its concomitant efficiencies, declares the applicant's right, and its existence (definition for the purpose of subjection, observed in art. 49) retroacts to the date of the fact generator.

In short, once the amount has been settled, the jurisdiction of the judgment of the individual demand is considered exhausted, which leads the creditor to proceed with the qualification of his credit with the judicial recovery.

The demarcation of the definition of subjection thus contained a judgment under the rite of repetitive special appeals with the following summary: 

REPETITIVE SPECIAL FEATURE. BUSINESS LAW. JUDICIAL RECOVERY. CREDIT. EXISTENCE. SUBJECT TO THE EFFECTS OF JUDICIAL REORGANIZATION. ART. 49, CAPUT, OF LAW No. 11.101/2005. DATE OF THE GENERATING EVENT.

  1. Special appeal filed against the ruling published under the Civil Procedure Code of 2015 (Administrative Enunciations No. 2 and No. 3/STJ).
  2. Action for annulment and damage repair for improper inclusion in a restrictive credit register. Discussion about the subjection of credit to the effects of judicial reorganization.
  3. In view of the legislator's option to exclude certain creditors from judicial reorganization, it is essential to define what should be considered as existing credit on the date of the request, even if not overdue, to identify in which cases it will or will not be subject to the effects of judicial reorganization. .
  4. The existence of credit is directly linked to the legal relationship that is established between the debtor and the creditor, the bond between the parties, since it is on the basis of this that, in the event of the triggering event, the right to demand the provision arises (credit right) .
  5. The credits subject to the effects of judicial reorganization are those arising from the activity of the entrepreneur before the request for recovery, that is, from facts practiced or business concluded by the debtor prior to the request for judicial reorganization, except for those expressly indicated in the governing law. .
  6. In compliance with the provisions of art. 1,040 of CPC/2015, the following thesis is established: For the purpose of submission to the effects of judicial reorganization, it is considered that the existence of the credit is determined by the date on which its triggering event occurred.
  7. Special feature provided.

(REsp 1840531/RS, Reporting Justice RICARDO VILLAS BÔAS CUEVA, SECOND SECTION, judged on 12/09/2020, DJe 12/17/2020)


(1) Access via the link: https://scon.stj.jus.br/SCON/pesquisa_pronta/toc.jsp?livre=@docn=%27000006886%27 In the specific case, there is reference to judgments of both the Third and the Fourth Chamber of the STJ, all mentioning precedents of the superior court, in the sense that "the credit recognized in a labor judgment, resulting from an employment relationship prior to the request for judicial reorganization, is subject to its effects".

LINK TO AGREEMENT: https://processo.stj.jus.br/processo/revista/documento/mediado/?componente=ITA&sequencial=2013206&num_registro=201902906232&data=20201217&formato=PDF

Source: Eduardo Allegretti.

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