Recuperação judicial de grupos societários: análise crítica da determinação judicial de inclusão compulsória de sociedades agrupadas no polo ativo da demanda recuperacional sob o mecanismo da consolidação substancial

Abstract

This paper aims to analyze the compulsory inclusion of companies in the active role of judicial reorganization proceedings of corporate groups, through judicial decision and without approval from the creditors' general meeting, based on the substantial consolidation mechanism provided for in Article 69-J of Law No. 11.101/2005, as amended by Law No. 14.112/2020. The study is justified by the increasing acceptance of this practice in Brazilian case law, despite its exceptional nature, raising concerns about its compatibility with corporate and insolvency law principles. The central research question is whether such judicial inclusion contradicts the legal provisions governing corporate groups and judicial reorganization. The main objective is to evaluate whether this judicial practice aligns with the principles of business recovery and the legal framework for corporate groups in Brazil. To achieve this, the study begins with the analysis of the concept of corporate groups, distinguishing them from affiliated companies, through elements such as control and significant influence. Next, the paper explores key legal aspects of judicial reorganization, including its legal nature, the roles of the parties and the court, and the function of the creditors' general meeting, with special emphasis on substantial consolidation as an exceptional mechanism for the unified treatment of debts and obligations within distressed corporate groups. Finally, the study examines the case law of major Brazilian courts, especially the São Paulo State Court of Justice and the Superior Court of Justice, in order to understand how Article 69-J has been interpreted and applied. The methodology is exploratory and descriptive, using both primary sources (legislation) and secondary sources (legal doctrine, academic articles, theses, and court rulings). The conclusion offers a critical analysis of the current judicial practice in light of existing legal norms, proposing solutions for the legal contradiction and suggesting further avenues for research in corporate and insolvency law.