Subjection of state-owned enterprises to bankruptcy
Liability of the State in bankruptcy proceedings
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Law No. 11.101/2005 - the Corporate Recovery and Bankruptcy Law - expressly provided for its non-application to state-owned companies. In principle, this resolved a historical doctrinal controversy. However, in view of article 173, paragraph 1, II, of the 1988 Constitution, which determines the application of the Private Law regime to mixed-capital companies and public companies that explore economic activity, part of the doctrine began to question the constitutionality of bankruptcy immunity, thus emerging two currents: the first, which argues for the constitutionality of article 2, I, of the...
Law No. 11.101/2005 - the Corporate Recovery and Bankruptcy Law - expressly provided for its non-application to state-owned companies. In principle, this resolved a historical doctrinal controversy. However, in view of article 173, paragraph 1, II, of the 1988 Constitution, which determines the application of the Private Law regime to mixed-capital companies and public companies that explore economic activity, part of the doctrine began to question the constitutionality of bankruptcy immunity, thus emerging two currents: the first, which argues for the constitutionality of article 2, I, of the Bankruptcy Law; the second, which defends exactly the opposite. In view of the discussion, doubts remain about the subject. In this book, the two lines of understanding will be presented, supporting, at the end, a third strand, in the sense that the constitutionality of the questioned provision does not resolve the pendency, that is, the urgent need for the edition of a new statute of state-owned companies that contemplates the discipline of the matter.
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