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Objectives: This article analyzes the legitimacy of the civil association to request judicial reorganization, and overcome any economic and financial crisis. Alternatively, the possibility of converting the civil association into a business company for use by the reorganization institute is evaluated.
Theoretical Framework: The analysis of the proposed problem was based on the theory of piercing the corporate veil, as well as the theories of technical reality, on which article 45 of the Brazilian Civil Code was based. With regard to the constitutional basis, the principles of free enterprise and the mitigated finalist theory, adopted by the Consumer Protection Code, were collated.
Method: The research was carried out mainly through the methodology of data collection contained in bibliographic survey and jurisprudential decisions.
Results: From the methodology adopted, it was possible to conclude that, although the decisions on the subject are incipient, there is a tendency of the higher courts to legitimize the civil association to request judicial reorganization, as long as it carries out economic activity.
Discussion: In view of the normative uncertainty about the legitimacy of the civil association to request judicial reorganization, it was up to the national judges, using hermeneutics, to analyze such a situation in practice and bring a definition to the case. The lower courts have divergent positions on the possibility of the civil association requesting judicial reorganization. The favorable decisions, in general, understood that there is no express prohibition of Law 11,101 of 2005. On the other hand, the unfavorable decisions are guided precisely by the opposite, that is, that Law 11,101 of 2005 does not expressly legitimize the association to use judicial reorganization.
Research implications: In practice, the recognition of the legitimacy of civil associations to request judicial reorganization provides a solution for such entities to overcome situations of economic and financial crises. In view of the large number of civil associations that are dedicated to business of a business nature, the conclusion about such a possibility has a direct impact on the ventures carried out in this modality in the national market.
Originality/Value: The research is aimed at the non-profit civil association, but which performs economic activity through the circulation of goods and services. This reality is little explored in the literature, even though these entities are responsible for a considerable portion of business in the Brazilian economy.
Este artigo analisa a legitimidade da associação civil para requerer recuperação judicial, e superar eventual crise econômico-financeira. Alternativamente, é analisada a possibilidade de converter a associação civil em sociedade empresária para utilização do instituto recuperacional.
A pesquisa é voltada para a associação civil sem fins lucrativos, mas, que desempenha atividade econômica através da circulação de bens e serviços.
Diante disso, conclui-se com o presente estudo que, apesar das decisões sobre o tema serem incipientes, há tendência dos tribunais superiores em legitimar a associação civil para requerer recuperação judicial, desde que, ela realize atividade econômica.
