Controversial aspects regarding the possibility of using the prior expertise in receivership

Abstract

This study aims to analyze the outcomes of the requirement of conducting prior expertise in receivership under the principle of safeguard of the company as a whole. The research classifies itself as hypothetical-deductive, descritive and bibliographic. In order to accomplish that, the main purpose of the Law No. 11,101/2005, the safeguard of the company as a whole and the usage of prior expertise in receivership were highlighted. However, the use of such tool is controversial, resulting in the necessity to present arguments pro and against the adoption of such proceeding. Nonetheless this tool being recommended as an exceptional measure by the National Council of Justice, its been more and more in an unreasonably way, and the judges have been transfering to the forensic experts the burden of analyzing the complicance of the documents presented, since the feasability of the company is an issue that further demands proper evidenciary instruction and, therefore, should not be assessed in a preliminary stage, let alone in previous expertise proceedings. Therefore, even though being an exceptional proceeding, there is the possibility of carrying out a previous forensic expert examination, highlighting that it should not be seen by judges as a condition of due process and judicial procedure of receivership proceedings.