Função social da empresa no brasil do século XXI: o exemplo privilegiado da recuperação judicial

Abstract

The present work aims to create a reflection about the necessary principle of the social function of the company observance when interpreting and applying the legal norms. In this way, does the inobservance company's social function in the judicial recovery procedures harm when it’s possible recovery? And yet, which can be the reflex social problems? Thus, the example of the institute of judicial reorganization of companies becomes relevant to the subject, since, in addition to the direct consequences to the company in casu discussed, it also generates numerous reflex social problems. Therefore, it brings to historical foreshortening of private property and their relationship with the company, as well, as their social function and related collective interests. Having the focus on Brazil in the 21st century, the paradigm of the constitutionalization and functionalization of Law is raised, where the Federal Constitution of 1988 leaves behind the regulatory bias as well present in previous constitutions and assumes a principled position, in order to influence and effectively to mark out the infra-constitutional norms, making the text preponderant in relation to the others, using most of the time principles, enabling a greater scope in its use and, closing the interpretative gaps resulting from the rules. This paradigm shift made it possible to reincorporate ethical values of justice into the law, mainly the human person dignity, affirming explicit or implicit precepts in the Constitution, through principles, whose primary concern is the pursuit of such objectives. As a framework to demonstrate the need to comply with the social function of the company, it brings up the procedure for judicial recovery of companies and bankruptcy, regulated by the modern Law 11,101 of 2005. From there, it´s possible to work the social function of the company on the many procedures stages of judicial recovery, demonstrating the mitigation of the absolute character of the private property, allying the private autonomy with public interest. The discretion that arises with the functionalization of the law and the principled character of the constitution is not unlimited and must me weighed in face the concrete case, observing reasonableness and proportionality, in order to achieve the constitutional goals and the law. Finally, talks about the existence of the social function bankruptcy, this being an alternative for the companies that are not viable for judicial recovery, with the aim of remove them from the market and reallocate their actives to other companies so that, in this way, they continue to generate the corresponding economic and social benefits. The human dignity presents as a maxim to be chased and, in terms of our modern Law Democratic State, where the fundamental rights constitucionalization takes a special juncture, the company has a especial relevance, mitigating the eminently private character in favor of social interest. In the end, we confirm the presented hypothesis, when the company assumes a huge relevant social function, must be taken into account when it´s rules interpretation and application. The companies judicial recovery institute is effective to demonstrate the company social function principle inobservance causes damages to beyond the directly related parts, reflecting on society in general.