Recuperação de empresas em crise no estado democrático de direito: limites e fundamentos constitucionais da aplicação do Cram Down para concretização do princípio da preservação da empresa

Abstract

This study has as its scope the limits and grounds of the Cram Down, legal institute whose purpose is to bring efficacy to the principle of preservation of economic activities in the Rule of Law. Firstly, it describes the three different types of State and their origin in Ancient costumary law. Furthermore, it elicits cumulative dimensions of fundamental rights that characterize each one of them. Moreover, it stresses the importance of Legal Hermeneutics to best interpret and bind that institute, especially in order to enforce legal certainty, private property and the social function of property. It emphasizes that neither classic methods of legal norm interpretation nor the latest hermeneutics models and schools will be enough to best comprehend legal phenomena if the legal system‘s coherence and integrity are not complied with. It also draws attention to the evolution of bankruptcy law, especially in order to demonstrate the mitigation of its repressive character and the adoption of institutes that allow the debtor‘s recovery. In addition, it makes a study of comparative law on the bankruptcy law of a number of countries by means of ascertain if they adopt the Cram Down. Its conclusion denotes the Cram Down as a duty of the judge, and not mere convenience, as long as its legal requirements are met.