O teste de razoabilidade (Best-interest-of-creditors test) como método para a verificação do abuso do direito de voto na assembleia geral de credores

Abstract

The Legal Reorganization and Bankruptcy Act, Lei 11.101/05, regulates the economic-financial firm crisis, legislation which has modified the way of shaping the reorganization of firms in economic distress, as well as it has modified the interpretation of agents about the social goal of the entrepreneurial activity regarding the prior statutes. An analysis of application of law must always seek the fulfillment of the goals designed by the law, along with the proposition of diminishing transactional costs. In this rationale, even though a judicial intervention makes itself necessary, this intervention must be limited, given that the Judiciary cannot deter private relations; outcome of the legal reorganization procedure and decisions and definitions casted upon the legal reorganization plan and consolidated in the creditor’s general assembly. Nevertheless, nowadays a deterrence of private autonomy through legal decisions without any technical support, resulting in an indiscriminate maximization of the conservation of firms principle interpretation. Methods and tools for narrowing a balanced analysis of ends intended by the Legal Reorganization Law are necessary to establish a more efficient interpretation, reducing, thus, transactional costs in this operation. Deter opportunistic behavior, either from creditors or debtors, may be the result from applying an objective method. Thus, is necessary to understand the historic evolution of the bankruptcy system, as well as the abuse of rights in the domestic legal system which is the subject of the first chapter. Due to the lack of legislative prediction to deter these behaviors, this research seeks in alien legislation and doctrine criteria to be applied in national level. Hence, this work seeks through the dialectic method, supported upon national and international bibliographic research, the legal structures that may achieve the goal designed by the legislator, which is, the maintenance of private autonomy, regarding the legal reorganization principles and objectives, presented in the second chapter. Therefore, it may be found within the North-American principles, especially the best-interest-of-creditors the deterrence of the abuse of voting rights. In order to be best suited, the abuse of vote valuation, to deter existent abuses in interpreting the abuse of the right to vote which is presented in the third chapter. The search of the best interest of these agents presents an axiological limitation, which must be tamed by the financial-economic analysis of the private propositions and their consequences, which is the reason by which this work culminates with a legal alteration proposition.