By Vitor Ferrari

In April of this year, Justice Luis Felipe Salomão issued a judgment understanding that the counting of the terms for suspension of executions and for the presentation of the judicial recovery plan must, exclusively, be done in consecutive and uninterrupted days. The decision was supported by the 4th Panel of the Superior Court of Justice. For the panel, this understanding better meets the specialization of the procedures provided for in Law 11.101/05, giving greater concreteness to the purposes of the Bankruptcy and Recovery Law.

It should be noted that the Minister made a point of including the following item in his ruling:

“7. In this case, given the systematic examination of the mechanisms created by the Bankruptcy and Recovery Law, the 180-day period for the suspension of executive actions against the debtor (art. 6, § 4°) and the 60-day period for the presentation of the judicial recovery plan (art. 53, caput) must be counted continuously.

(…)

(REsp 1699528/MG, rapporteur Justice LUIS FELIPE SALOMÃO, FOURTH PANEL, tried on 04/10/2018, E-DJ 06/13/2018)”

As can be clearly seen from the opinion expressed by the Rapporteur, only the 180-day period for the suspension of executive actions against the debtor and the 60-day period for the presentation of the judicial recovery plan should be counted continuously, with the counting in working days provided for in the 2015 Code of Civil Procedure being inapplicable.

However, another issue must be highlighted.

What are the procedural deadlines in the Judicial Recovery process, which are provided for in art. 219 of the CPC of incidental and appeal measures in the main proceedings of the Judicial Recovery?

Article 219 of the new CPC establishes that “when counting the term in days, established by law or by the judge, only business days shall be counted”. The sole paragraph also provides that this form of counting “applies only to procedural terms”. Thus, the terms for defense, for appeal, for, in general, to express an opinion on the documents, evidence and other elements brought to the case and for the performance of acts by the judge or by the clerks (articles 226 and 228) are typically procedural law.

There is no other answer than to maintain the term provided for in the Civil Procedural Law, given that, with the exception of the terms outlined in the decision issued by the STJ.

The Minister highlighted the following passage in his decision:

“The bankruptcy and recovery microsystem was designed in a peculiar logical and systematic spectrum, with a prediction of a succession of acts, in which speed and effectiveness are imposed, with specific deadlines that, as a rule, must be brief, peremptory, unavoidable and, therefore, continuous, under penalty of violating the rationality and unity of the system, designed to be resolved, as a rule, within 180 days after the approval of its processing”

The speed and effectiveness of the Law must preserve the 180 days after the processing is granted, factors that must be preserved. However, the eminently procedural deadlines cannot and should not be disregarded.

According to the rapporteur himself, there is an intense doctrinal and jurisprudential debate regarding the extension of the application of the CPC/2015 in the counting of deadlines. However, he states that the CPC categorically states that the special provisions of procedures regulated in other laws remain in force, and the criterion of counting in working days is exclusively aimed at procedural deadlines.

Thus, we have that the deadlines for manifestation determined by the Court and by the Civil Procedure itself must remain under the aegis of art. 219 of the CPC, remaining the deadlines of 180 days for suspension of executive actions against the debtor (art. 6, § 4°) and 60 days for the presentation of the judicial recovery plan (art. 53, caput) in a continuous manner, giving the necessary speed to the recovery procedure.

In conclusion, for the minister, the application of the CPC/2015 within the scope of the recovery and bankruptcy microsystem “must have an eminently exceptional nature, applying only in a subsidiary and supplementary manner, provided that there is evident compatibility with the nature and spirit of the special procedure, always giving precedence to the specific rules and principles of the Recovery Law and with a view to meeting the purpose of its principle-norm set forth in article 47”, a fact that should not and cannot alter the deadlines included in the CPC and determined by the Judicial Recovery Court.