Post by xyz3500 on Feb 21, 2024 23:55:16 GMT -5
The judicial recovery of companies is based on the ethics of solidarity, which aims to meet the interests of the parties involved and harmonize the rights of each one, instead of establishing a confrontation between debtor and creditors, therefore being a sacrificial procedure . Reproduction/Facebook Reproduction/Facebook OAS will have 10% of its monthly net revenue seized by decision of the TJ-SP This was understood by the 2nd Chamber of Business Law of the Court of Justice of São Paulo when determining the seizure of 10% of the monthly net revenue of the OAS Group, which is in judicial recovery. The TJ-SP reformed the first degree sentence and accepted the request from Itaú bank, holder of OAS's extra-bankruptcy credit.
The seizure must be limited to R$115 million, which corresponds to the company's credit with the bank. “The judge must reflect on the sacrifice required from creditors to achieve the preservation of the company and the success of the recovery plan, since the reorganization of economic activity is costly, and it is undeniable that the interest in avoiding the risks of debtor bankruptcy it is closely linked to greater receptivity to negotiation alternatives on the part of creditors”, stated the Israel Mobile Number List rapporteur, judge Maurício Pessoa.. Although the protection of the essential asset of the company under reorganization somewhat relativizes the right of individual execution on the part of extra-bankruptcy creditors, Pessoa stated that it is necessary to modulate the rule to balance the interests involved, “and the flexibility of the appellant's right must be guided by for reasonableness and proportionality, mitigating its risks and adjusting to the reality and conditions of the company under recovery, without excluding the creditor's rights”
The suspension of collection was achieved by the Retail Trade Union of Santo Ângelo, which filed a writ of mandamus questioning the legality of the advance collection of the tax. The period in which the injunction was in effect, before being heard by the Superior Court of Justice: from April 22, 2009 to June 6, 2016. For the state tax authorities, there is no illegality in the application of the late payment fine and interest in the event of subsequent revocation of the injunction. After all, according to the literal wording of Precedent 405 of the Federal Supreme Court, ''If the writ of mandamus is denied by the sentence, or in the judgment of the appeal filed therein, the injunction granted becomes ineffective, retroacting the effects of the contrary decision''. However, the plaintiff argued that, as the ICMS requirement had been suspended during this period of time, charging interest or a fine could not be considered.
The seizure must be limited to R$115 million, which corresponds to the company's credit with the bank. “The judge must reflect on the sacrifice required from creditors to achieve the preservation of the company and the success of the recovery plan, since the reorganization of economic activity is costly, and it is undeniable that the interest in avoiding the risks of debtor bankruptcy it is closely linked to greater receptivity to negotiation alternatives on the part of creditors”, stated the Israel Mobile Number List rapporteur, judge Maurício Pessoa.. Although the protection of the essential asset of the company under reorganization somewhat relativizes the right of individual execution on the part of extra-bankruptcy creditors, Pessoa stated that it is necessary to modulate the rule to balance the interests involved, “and the flexibility of the appellant's right must be guided by for reasonableness and proportionality, mitigating its risks and adjusting to the reality and conditions of the company under recovery, without excluding the creditor's rights”
The suspension of collection was achieved by the Retail Trade Union of Santo Ângelo, which filed a writ of mandamus questioning the legality of the advance collection of the tax. The period in which the injunction was in effect, before being heard by the Superior Court of Justice: from April 22, 2009 to June 6, 2016. For the state tax authorities, there is no illegality in the application of the late payment fine and interest in the event of subsequent revocation of the injunction. After all, according to the literal wording of Precedent 405 of the Federal Supreme Court, ''If the writ of mandamus is denied by the sentence, or in the judgment of the appeal filed therein, the injunction granted becomes ineffective, retroacting the effects of the contrary decision''. However, the plaintiff argued that, as the ICMS requirement had been suspended during this period of time, charging interest or a fine could not be considered.