In the judgment of Special Appeal no. 1.298.670 / MS, the Superior Court of Justice ruled that succumbencial legal credits formed after request for judicial recovery are not subject to the suspensive effects provided for in article 6 of Law 11,101 / 05. This was the understanding of the Fourth Panel of the Superior Court of Justice (STJ) in a special appeal brought by a company under judicial reorganization.
The company requested the suspension of the execution of the fees for the credit to be included in the recovery plan. It argued that, since the main claim of the proceeding is linked to judicial recovery, the succumbencial fees, as they stem from the principal credit, should also be qualified in the recovery judgment.
The rapporteur, Minister Luis Felipe Solomon, rejected the argument. According to him, there is no relation of accessority between the credit sought in the execution and the fees of sucumbency resulting from the process, which are an autonomous right of the lawyer for the work rendered.
Thus, having the credit of legal fees arising after the request for recovery, integrating it into the recovery plan would be a violation of Law 11,101, which restricts to judicial recovery only the credits existing at the date of the request, even if not overdue.
The minister distinguished, however, the differentiated legal treatment granted to creditors in the judicial recovery, which contributed to the attempt to re-start the company in crisis, the treatment of creditors of attorney fees.
According to Solomão, credits created by works performed in disfavor of the company, "although of very high virtue, do not equate - at least for the purpose of business uprising - to business or labor creditors", who need greater guarantees to continue investing in companies with difficulties.
"It seems to me correct to use the same reasoning that guides article 49, paragraph 3, of Law 11.101, according to which even the creditors whose credits are not subject to the recovery plan can not expropriate essential assets to the business activity", said the minister.
With the decision, the execution of the sucumbencial fees will continue in the common court, but it will be up to the universal judgment to control acts of constriction or property expropriation, which should consider the essentiality of the good to the business activity.