O INTERESSE DE AGIR NO PROCESSO DE RECUPERAÇÃO JUDICIAL E SUA VERIFICAÇÃO PELA TÉCNICA DA CONSTATAÇÃO PRÉVIA

Abstract

The present study targets the judicial recovery process, and the act in the best interest validation as admissibility requirements of action, by analyzing the prior finding technique, listed in the 51-A article, 11.101/05 Law. Aims demonstrate the relevance of the study of the institute’s procedural aspects, confirming that the procedural devices can and should focus on mechanisms of achieving effectiveness and success of the judicial recoveries in Brazil, as well as allowing straightness on the knowledge regarding judicial procedures related to the corporate crisis. Thus, will be analyzed the specific attributes of the judicial recovery process, labeling it as a structural and collective process. In addition, it is analyzed the judgment admissibility definition, the condition of action, and action in the best interest, seeking its description on the judicial recovery process. This way verifies the applicant’s requirement sets in creating economic and social benefits by preserving its activities as part of the action in the best interest of the judicial recovery process. After a technical approach of the prior finding technique, the procedural method was used to verify this requirement of the admissibility on the judicial recovery process’ approval. It compares the prior finding technique to the one used in the Italian Law, before the preventive arrangement process, to verify if the company has the capability to achieve the Italian legal objectives, and as its particularities can contribute to a better procedural technique in the Brazilian legal system. Finally, discussions are made regarding the possibility of the investigation of the best interest, using the evidence activity before the admissibility judgment, from the provision of evidence as a floating module, interpreting the article 381 of the CPC, and the possibility of making the recovery procedure more flexible.