Aspectos polêmicos da tutela de urgência cautelar concedida nos termos do art. 20-b, §1º da Lei nº 11.101/2005

Abstract

The Law 14.112/2020 brought significant changes to the Law on Judicial Reorganization and Bankruptcy, expressly allowing the use of conciliation or mediation prior to judicial recovery proceedings as pre-insolvency mechanisms to encourage debt negotiation between companies in early stages of distress and their creditors, aiming to avoid the filing of judicial recovery actions. To ensure a negotiation environment between the parties, it admitted the possibility for the debtor to obtain urgent precautionary measures provided for in Article 305 and following of the Civil Procedure Code, to suspend executions against them proposed for up to 60 days, for attempting composition with their creditors, pursuant to Article 20-B, §1 of the Judicial Reorganization Law. However, the innovation of the law brought numerous other challenges to its interpreter. This article seeks to address the issue created about which creditors may be affected by the precautionary measure, whether the effects of the anticipation of the stay period bind all creditors of the company in crisis or only those invited to participate in the prior negotiation procedure, whether the 60-day period is extendable, and how to ensure that the precautionary measure is not used solely to delay debt payment and/or to harm creditors. The proposal of this article is to understand the objectives, limits, and contours of the pre-trial precautionary measure in judicial recovery processes through a systematic interpretation of the Civil Procedure Code in relation to the Judicial Reorganization Law and Law 13,140/2025.