The bankruptcy and judicial recovery procedures are provided for in the same legal diploma, in Law No. 11,101/2005, popularly known as the Judicial recovery and Bankruptcy Law. The joint forecast is justified by the fact that the situation giving rise to the bankruptcy procedure is the same as that giving rise to the judicial reorganization procedure: the insolvency of the entrepreneur or business partnership.
The state of insolvency is characterized when the liabilities of the entrepreneur or the business company are greater than their assets, that is, when the entrepreneur or the business company can no longer afford the obligations assumed, since it no longer has the conditions, especially financial, to do so. Usually the state of insolvency is linked to the periods of economic crisis faced by the country.
It is important to highlight, also as common characteristics to both procedures, that the Judicial reorganization and Bankruptcy Law applies only to those who exercise some type of entrepreneurial activity, and those who do not exercise entrepreneurial activity will not be able to apply for bankruptcy and judicial Reorganization Procedures.
According to Article 966 of the Civil Code, entrepreneurial activity is that economically organized for the production and circulation of goods or services. However, some activities, although they meet the aforementioned requirements, are excluded from such a concept, such as activities of a scientific nature or of an intellectual nature, such as the provision of legal services, for example.
Despite having several points in common, the procedures have different objectives. While the legal benefits brought by the judicial recovery procedure are used in order to restore the entrepreneur or the business company that claims them, the bankruptcy procedure only aims to pay the debts of the entrepreneur or the business company.
In this way, the requirements to claim each procedure are also different. In judicial reorganization, the entrepreneur or the business company must demonstrate that, despite being insolvent, it has the economic viability to resume its activities and, with that, return to fulfill its obligations. In the opposite sense, bankruptcy presupposes breakage and economic unfeasibility of the entrepreneur or the business company to fulfill the obligations previously assumed.
It can be said, thus, that judicial reorganization is a pre-bankruptcy moment, in which an entrepreneur or business society, in the last chance, tries to use legal mechanisms to survive the economic and financial crisis experienced.
The judicial reorganization procedure begins with a request from the entrepreneur or the business company, formalized through the procedural piece called the initial petition. In this petition, the facts that led to the insolvency must be narrated, as well as the economic viability to continue the exploitation of the activity must be demonstrated.
Before formally filing the application for judicial reorganization, it is important that the entrepreneur or the business company, if possible, seek its main creditors and, together with them, draw up a judicial reorganization plan that meets both the interests of both parties. This stage is not mandatory, nor is it provided for by the law on Judicial reorganization and bankruptcy, but it is recommended that the entrepreneur or business company observe it.
With the granting of the request for judicial recovery by the competent court, the entrepreneur or the business company will use benefits to try to recover. Among the possible benefits, we highlight the suspension of executions, the possibility of granting deadlines and special conditions for the payment of obligations, salary reduction, compensation of hours and reduction of working hours, by agreement or collective agreement, among others.
If the entrepreneur or the business company, even after granting the above benefits, fails to fulfill its obligations or fails to comply with the recovery plan, the judicial recovery procedure will be converted into bankruptcy, a situation in which, at the same time, the judicial recovery procedure is terminated, considering that the entrepreneur or the business company failed to recover, and the bankruptcy procedure is initiated.
The bankruptcy procedure also begins with a request, either the request for conversion of judicial reorganization into bankruptcy or, then, the bankruptcy application itself, which can be made by the entrepreneur or business company itself, the so-called self-bankruptcy, or by private creditors.
In this procedure, the administrator of the business company is removed, and a judicial administrator is appointed to take his place. The judicial administrator begins to carry out administrative activities, but not the administration of operations, but the administration of the assets and liabilities of the bankrupt business company, with the aim of liquidating the obligations contracted and not fulfilled.
It is up to the judicial administrator, in this sense, to verify the debts of the business company and list its creditors, framing them in the so-called classes of creditors, being them: labor class, class of creditors with collateral, class of tax credits and class of common creditors, also called chirographers.
The separation of creditors into classes is based on the order of preference for the payment of the debts of the business company, which is called competition of creditors. Creditors are paid in the order mentioned above, from the labor creditor to the chirograph creditor.
It is also up to the receiver to settle the assets of the business company, so that the payment of creditors is carried out. Thus, the payment of creditors is carried out with the sales of the property belonging to the business company.
Thus, In conclusion, bankruptcy and judicial Reorganization Procedures, although they have similar starting points, the main one being the economic-financial-patrimonial crisis experienced by the entrepreneur or business society, seek different purposes. While the judicial reorganization procedure aims that the entrepreneur or the business company, through the legal benefits granted, can fulfill its obligations and continue exercising its social function, which is, in short, to generate product and/or service, employment and income, the bankruptcy procedure is used when the entrepreneur or business company no longer presents economic-financial or patrimonial viability to overcome the state of insolvency.
Anna Paula Piovesan Pinheiro
Lawyer, graduated in law, with emphasis in Civil Law, from Universidade Presbiteriana Mackenzie, enrolled in the Brazilian Bar Association, São Paulo Section (OAB/SP) (2021). Author of articles. Lawyer at TM Associados.
First thoughts on the new bidding law.
The new bidding law, nicknamed NLL, law Nr. 14.133 / 21, more compiled sparse laws and decisions of Brazilian courts that innovated, and in truth, is another step in the search for Brazil’s participation as a full member in the OECD (Organization for Economic Cooperation and development).
The promise of enacting this law was to strengthen the integrity of government procurement systems. Governance and COMPLIANCE criteria were included in the law, allowing greater legal certainty to contractors, and seeking greater efficiency in the application of public resources.
What did she advance on?
Good advances in governance, with the following managerial elements to be implemented by the Public Power:
Annual hiring plan;
Preliminary Technical Study;
Competence management with segregation of duties, which consists of the separation of functions of authorization, approval, execution, control and accounting of operations, avoiding the accumulation of functions by the same server;
Risk management;
Electronic Contracting;
Preference for digital monitoring of works;
PMI (expression of interest procedure), which seeks by request to the private initiative the solutions of the Public Administration, suppressing the asymmetry of information between the Public Power and the market.
Reputation system with the creation of a positive record of suppliers who fulfill their contracts.
Good progress in Compliance:
requiring integrity programs in major hires;
establishment of the criteria for judging the proposals;
accountability of the manager in cases of clear and gross negligence for ” undue fault”;
Creation of the National Public Procurement Portal (PNCP);
What has been the impact of this law on the lives of companies and people?
The biggest impact for companies concerns the search for the guarantee that the bidding process will be fair, efficient, transparent, and accessible to all who are willing to participate in it. With clear rules, it brings legal certainty to participants, who will have the same opportunities in the competition.
For the citizen, the impact of this law seeks to guarantee the efficiency of the application of public resources, and this generates the expected best value for money, or better quality/price ratio, which means that at the lowest price the state will provide the citizen with a better structure, and a better quality public service.
How the trademark registration process works at INPI
The company already has knowledge of the importance of registering a trademark with the National Institute of Industrial property (INPI), to give relevance and protection to trademarks that represent a business, product or service.
However, even today there are many doubts about how the trademark registration process works, which is why this article aims to explain the step by step of the process, its deadlines and fees.
The first important point is to check if the trademark that is intended to be registered has not yet been registered, since equal trademarks will not be accepted by the INPI.
For this, it is necessary that a search in the INPI database be carried out, to consult the trademarks already registered, and those that do not appear there, (except those prohibited by law, such as the cases of high-profile trademarks and notoriously recognized trademarks, which the legislation prohibits registration) may continue with the registration normally.
It is also important that the brand has a defined sector, that is, that it has a specific classification, for example, restaurants, clothing stores, advertising agencies, etc. This is because, at the specific moment of the registration request, all these data must be informed to the INPI.
Another previous step is the definition of the nature and presentation of the trademark, that is, if it will be a trademark of a product, service, mixed or certification nature; and if it will have a logo, if it will have only the commercial name, or any other specification regarding its presentation.
When everything is set, it’s officially time to get your hands dirty. Originally the INPI charges two fees for registration, one at the beginning of the process and another at the end (when the trademark has already been granted for registration). However, if it is necessary to submit more documents for the INPI evaluation, other fees may be required.
The initial fee is R$ 355.00 (three hundred and fifty-five reais) for trademark registrations with an already approved specification, that is, for trademarks of products and services that are already on the INPI lists, and the final fee (when the trademark is granted) is R$ 298.00 (two hundred and ninety-eight reais) for MEI, ME and EPP and R$ 745.00 (seven hundred and forty-five reais) for companies that do not benefit from the discount granted by legislation.
However, as previously mentioned, other fees may be required by the INPI, or in the case of rejection of the trademark, where it will be possible to file an appeal (and this will generate a separate fee for its presentation).
After payment of the first fee it will be necessary to monitor the process, verifying its progress and at this stage the INPI will carry out a formal examination of the application. In the formal examination, the INPI may require new supporting documents and the deadline for submitting them is only 5 (five) days.
If everything is correct, the application is published and a period of 60 (sixty) days is opened for the submission of oppositions. Here, third parties can object to the registration of the trademark, claiming that the name is contrasting with another already registered trademark, for example. If there is an opposition, the deadline for the manifestation of this opposition is 60 (sixty) days.
After the presentation of oppositions and demonstrations, the BPTO will decide whether to grant or reject the trademark.
With the granting, it is necessary to pay the final fee already mentioned in 60 (sixty) days, and after payment the trademark will be protected for 10 (ten) years, and this time may be extended for periods of 10 (ten) successive years.
With the rejection, you can file an appeal within 60 (sixty) days, making the payment of a new fee, and at this stage you have the opportunity to demonstrate again the reasons why the trademark should and can be registered. BPTO experts will re-evaluate the application and make a final decision. From the decisions of the INPI, it is also up to the taking of judicial measures.
It is important to remember that the registration of a trademark is the only tool capable of legally protecting it from copies or unfair competition, in addition to guaranteeing its owner the exclusive right to use the trademark throughout the national territory, in addition to being able to extend this right to more 137 member countries of the Paris Union of 1883.
Therefore, in the words of Dr. Leonardo Theon de Moraes, master in Business Law and Founding Partner of the business law firm TM Associados, “the act of registering a trademark is a true investment in the company, and not an expense, because such an action will directly reflect on the future of the company itself, in marketing, in visual identity, in the security of return on investments in advertising and publicity and in the recognition of customers.”
In this way, although the trademark registration process is laborious, it is extremely important for business.
Giovanna Luz Carlos
Lawyer, graduated in law with emphasis in Civil Law from Centro Universitário Padre Anchieta – FADIPA (2019) enrolled in the Brazilian Bar Association, São Paulo Section (OAB/SP). Postgraduate in Civil Procedure at Faculdade Damásio De Jesus. Lawyer at TM Associados.
Importance of labor Compliance for companies
Business / the term compliance originates from the English verb “to comply”, which means “to obey, to be in compliance with laws, ethical standards, internal and external regulations”.
Compliance is nothing more than a code of conduct, with a public character (usually available on the website of a particular company) in which the Company defines its values, objectives, goals and standards of how to act in certain situations, before customers, suppliers and employees. It arose with the full intention of avoiding deviations in conduct, preserving the principle of good faith and legal certainty.
In addition to standardizing the conduct to be taken by the company and its employees, compliance rules aim to make companies transparent to the market and society.
Following this premise, it should be noted that labor compliance arose in order to make transparent to the market and society the attitude and treatments taken by a certain company before its employees. Said device ensures the practice of good manners by the company and its employees in maintaining compliance of its Acts/requirements with the laws relevant to labor law, reducing the risks of suffering administrative fines or other penalties. In this mainstay, it should be noted that the main objective of labor compliance is to minimize labor liabilities, that is, the rates of lawsuits.
In this mainstay, it should be noted that the main objective of labor compliance is to minimize labor liabilities, which includes creating, in a certain way, a protection to the Labor risk that the company may suffer due to the practice of illegal conducts. For this, the attitudes admitted in the organization must be adapted, from the base to the board / presidency, also instituting punishments for those who fail to comply with the provisions of the code of conduct.
In addition, for there to be an effective compliance with the rules of labor compliance, and also, in a certain way, an “inspection” of the conduct of employees/managers, it is of paramount importance, the creation of a complaint channel that, among others, must preserve anonymity and efficiency, where employees can make their complaints, complaints and situations that they understand hurt the company’s code of conduct.
In order for labor compliance to be established and harmonious, fulfilling its purpose, it is necessary to establish a multidisciplinary team, in which the human resources sector must work concomitantly with the legal, accounting, as well as with management (managers/directors, etc.) to act and detect in the Prevention of risks, in order to avoid disagreements between employees and superiors, work accidents, development of occupational diseases and other situations that may give cause to possible propositions of labor complaints.
In order for there to be effective mitigation of Labor risk, the attitudes to be taken by the company go far beyond, for example, simply providing personal protective equipment (PPE), the needs of the company and each sector must be ascertained and the premises adjusted to this.
It is possible to cite as an example a sector of a certain company that there is a demand for employees to perform overtime habitually. In this case, it should be verified what is the best strategy to solve the problem, and the solution may be the limitation of 2 extra hours per day with the institution of hour bank, or the hiring of more employees, or even the hypothesis of the promotion of one or two employees to a position of trust, which in accordance with Article 62 of the CLT, does not have control of working hours, but with the right to an increase of 40%.
Or, the Company expressly states in its code of conduct that it is intolerant of slave labor, child labor, as well as moral and sexual harassment, repudiating and creating express punishment for those who hurt such recommendations, regardless of the position that the offending individual enjoys.
In other cases, companies that have production lines can be mentioned, which, in addition to providing personal protective equipment (PPE), include in their code of conduct that there will be, periodically, the realization of studies and ergometric reports in order to verify what possible damages that a certain function brings to the worker if exercised for many hours and for a long time, and also, stating what attitudes will be taken to avoid triggering possible diseases arising from the posture in which the worker remains during labor, either by performing repetitive movement or by carrying excess weight.
Finally, it is concluded that the institution of a labor compliance will not eradicate all the risks of the company, considering that there is no organization free of economic and business risks, however, through labor compliance it is possible that such risks are mapped, controlled, calculated and even avoided, aiming at the mitigation of Labor liabilities, as well as that the company increases the level of credibility before its customers, suppliers and employees, making all individuals want to negotiate and work with that organization.
Júlia Piovesan de Souza is a lawyer, graduated in law, from the Padra Anchieta University Center (2018), enrolled in the Brazilian Bar Association, São Paulo Section (2019). Postgraduate in Business Law from Faculdade Legale, author of articles. Lawyer at TM Associados.
Arbitration in labor law-conflict resolution.
Few know, but the judiciary is not the only means of resolving a conflict between two people. In the civil sphere there is already an old acquaintance in the middle, which is arbitration. This is a form of conflict resolution that can be defined as: “conflict resolution by a trusted third party of both parties that can be used by capable persons and on available Rights”.
In the case of the Labor Court, the labor reform authorized the use of this means of conflict resolution. However, it is important to note that for the application of Arbitration in cases related to labor law:
It is necessary to examine the fulfillment of the basic requirements for the application of the technique, since:
it is only valid on individual contracts;
if it has to be agreed since the hiring or may be adhered to voluntarily in the course of the employment contract or after its termination;
whether collective bargaining may change the requirements laid down by law for the adoption of Arbitration;
if there is the application of equity in the arbitral environment;
if arbitration has a limitation in its field of discussions.
However, several of these issues for most jurists are clarified when analyzed article 507 of the CLT that provides for:
In individual employment contracts whose remuneration is more than twice the maximum limit established for the benefits of the General Social Security System, an arbitration clause may be agreed upon, provided that on the initiative of the employee or upon his express agreement, under the terms provided for In Law No. 9,307, of September 23, 1996.
The fact is that if today there is a chance to solve problems far from the crowded judiciary, this will always prove to be the best way out. Even in this sense, it is important to say that using arbitration or mediation is a way to democratize justice for the parties.
Juliana Brianezi Faria, lawyer, graduated in law from Centro Universitário Padre Anchieta, enrolled in the Brazilian Bar Association, São Paulo Section (OAB/SP). Postgraduate in civil Procedural Law from Faculdade Damásio De Jesus. Postgraduate student in labor law and process at Universidade Presbi
LGPD administrative fines begin to apply
In order to enable greater security in the processing of personal data of individuals, Law 13.709/2018, named as the General Data Protection Law and popularly known by the acronym LGPD, entered into force throughout the national territory on September 18, 2020.
Since then, it is expected that small, medium and large companies have started a task force to adapt all their sectors and means of business to the rules provided for in the LGPD.
What few know is that the law was partially in force, since only the administrative fines for non-compliance with the law, provided for in Article 52, began to take effect from this Sunday, August 01, 2021.
The period of 1 (one) year for the beginning of the application of fines for infringing companies was granted by Congress in order to provide timely information for companies, at first, to understand what operations, both internal and External, would be influenced and make the necessary adjustments.
If it is known that the simple modification in the day-to-day of some sectors of the company, it is only a starting point for the company to comply with the law, but it is not enough. Compliance with LGPD needs to be a culture within the company and the knowledge of the entire body of employees, directors, service providers and even suppliers.
Fact is that more than ever, the Brazilian entrepreneur must take seriously and do everything possible to comply with the rules imposed by the LPGD, this is because the punishments provided for are strict and, depending, may cause great financial losses for the company.
The National Data Protection Authority (ANPD) will be the main body responsible for overseeing compliance with the LGPD throughout the national territory and, therefore, this will be the entity that will apply administrative fines when any irregularity is found.
The penalties vary in: administrative, such as the application of warnings, payments of high fines calculated up to 2% (two percent) of the turnover of the infringing legal entity, limited, in total, to R$ 50,000,000.00 (fifty million reais) per infraction,the publicity of the infraction committed, a measure capable of tarnishing the company’s reputation in the market, making its growth unfeasible and even the Prohibition of using certain data, a penalty that may even make it unfeasible to continue of the company.
Little is known about how the ANPD will carry out the inspection and apply the fines, but it is expected that this will occur in phases and the infractions will be measured in degrees of severity, starting with the application of warnings, with a more educational focus, so that the company knows what, how and even when it needs to adapt its operation to comply with the law and, later, in cases where the adequacy is not regulated even after receiving the necessary warning and guidelines, the application of the fine in Pecunia.
As stated, the ANPD will be the main body responsible for overseeing compliance with the LGPD, but it will not be the only one. By publicizing the rights that the law guarantees, it is expected that the holders of personal data themselves will assist in the supervision of the holders of their data and report the abuses committed not only to the ANPD, but also to the judiciary when necessary.
Thus, it is extremely important that entrepreneurs turn their attention to the General Data Protection Law and adapt their companies, because only then will they be safe and ready for when the inspections actually begin.
Marina Sampaio Costa
Lawyer, graduated in law, from the Padra Anchieta University Center (2018), enrolled in the Brazilian Bar Association, São Paulo Section (2019). Postgraduate in Business Law from Faculdade Legale, postgraduate in corporate law and Compliance from Escola Paulista de Direito (EPD), author of articles. Lawyer and manager of the advisory area at TM Associados.omit for real
New Business Environment Law (Law 14.195 / 21)
Dear customers and friends,
The New Business Environment Law (Law 14.195 / 21) was sanctioned by the president of the Republic, and is already in force. It alters many negotiation and procedural points throughout the Brazilian territory. It is a law that came to seek to improve Brazil’s ranking in DOING BUSINESS (https://www.doingbusiness.org/en/doingbusiness), which could attract more international investment to the country.
You have a point of attention, which has urgency: the citations, which are the acts for which the defendant, the interested party, or the executed are summoned to join the action, offering defense, have become preferably Electronic (by e-mail). With this, received the citation email, the cited will have a period of 3 (three) business days to confirm receipt, if receipt is not confirmed there will be an attempt to citation by other means (bailiff, letter, among others).
For those who do not confirm receipt and are cited by other means, at the first opportunity to express themselves in the process must justify why the citation received is not confirmed by e-mail, and if there is no just cause for the lack of confirmation, the act may be considered as an attack on the dignity of justice and result in a fine of up to 5% of the value of the cause.
The law establishes that, for citation purposes, the Regional Council of Justice will draft a resolution to define how the registration and updating of the database will take place, which has become mandatory: all of us will have to register e-mail for citation receipt purposes.
The problem is that, until the regulation of the CNJ takes place, the emails provided to the Tax Administration (Federal Revenue and state revenue), may be used for this purpose, that is, those emails provided when opening companies, or when submitting the annual income tax adjustment Declaration of individuals and legal entities, may be the email used to send a quote.
Many accountants report their own emails to Receitas Federal, Secretaria da Fazenda do Estado, among other public agencies, so we recommend that each of you check with your accountants about what will be the email informed in the Tax Administration records, and what will be the procedure for you to receive the electronic citations in time to present defense in any legal process.
Written by: Maura Varella, executive partner.
Lawyer, graduated in law, with emphasis in civil and civil procedural law, from the Faculty of Law of the University of Vale do Paraíba (1995), enrolled in the Brazilian Bar Association, São Paulo Section (1996), specialist in civil and family law from the Faculty of Law of the University of São Paulo (1998), postgraduate in business law from the Brazilian School of law / OAB, member of the Business Law Commission of the 33rd subsection of the OAB/SP, Deputy Head of ceremonial and protocol of the 33rd subsection of the OAB/SP, author of articles. Partner responsible for the litigation area of TM Associados.
Black Friday and the right to regret
There are some commemorative dates that have been created in order to stimulate commerce, among them Black Friday, known for offering a variety of promotions, especially in the area of electronics. In that year 2021, it is expected to set a record for online sales on that date.
The pandemic played a definitive role in increasing sales through the internet, called e-commerce, since many people stopped circulating through shopping malls and shopping centers to avoid crowds.
It has become routine to make purchases through websites and applications, both clothing, electronics, appliances and even food, often for a more advantageous price than in physical stores. However, there are some points that deserve attention.
Purchases made online guarantee the right to regret, which is nothing more than the possibility of the consumer, in a very simple and fast way, to give up the purchase made through the internet, without having to justify themselves.
The Consumer Protection Code, in its article 49º, establishes that the consumer can withdraw from the purchase whenever it is carried out outside the commercial establishment, within 7 (seven) days, since in this case there is no direct contact with the product.
This right does not cover purchases made in the store, since on this occasion the consumer has the opportunity to see and try the product before making his purchase decision. In this case, the merchant only has the obligation to make the exchange or refund the amount paid if there is a defect in the product capable of making it unfit for consumption or that devalues the good. Exchange in other cases is mere freedom of the shopkeeper. For this reason it is the obligation of the merchant to provide the relevant information of the merchandise to avoid any type of problem.
As much as there is a right to regret online purchases, making the exchange or return can cause certain wear and tear to the consumer. Therefore, the recommendation is that he carry out a conscious and planned consumption, respecting his financial organization to avoid impulsive purchases.
A precious tip for Black Friday is to carry out a good price research of the desired product a few weeks before to check if the promotional value is really advantageous, since it is a common market practice to leverage prices in the period leading up to the date. In 2020, the products were up to 70 % more expensive, according to the Brazilian Institute of retail executives and market research.
Consumption (IBEVAR). This practice, popularly known as” Black fraud”, must be reported to consumer protection agencies such as PROCON (Consumer Protection and Defense Program).
Other illegal practices, such as the dissemination of misleading advertising (that which brings false information, seeking to mislead the consumer), must also be reported to PROCON, and, depending on the severity of the case, prosecuted. In the latter case, it is recommended to look for a lawyer specializing in the rights of
Consumer so that he can guide the case with greater propriety.
Ana Carolina Gracio de Oliveira. Graduated in law from Júlio de Mesquita Filho State University (2020). Postgraduate in Civil and Business Law from Faculdade Damásio De Jesus. Lawyer at TM Associados./
Bankruptcy and receivership: What are the main differences?
The bankruptcy and judicial recovery procedures are provided for in the same legal diploma, in Law No. 11,101/2005, popularly known as the Judicial recovery and Bankruptcy Law. The joint forecast is justified by the fact that the situation giving rise to the bankruptcy procedure is the same as that giving rise to the judicial reorganization procedure: the insolvency of the entrepreneur or business partnership.
The state of insolvency is characterized when the liabilities of the entrepreneur or the business company are greater than their assets, that is, when the entrepreneur or the business company can no longer afford the obligations assumed, since it no longer has the conditions, especially financial, to do so. Usually the state of insolvency is linked to the periods of economic crisis faced by the country.
It is important to highlight, also as common characteristics to both procedures, that the Judicial reorganization and Bankruptcy Law applies only to those who exercise some type of entrepreneurial activity, and those who do not exercise entrepreneurial activity will not be able to apply for bankruptcy and judicial Reorganization Procedures.
According to Article 966 of the Civil Code, entrepreneurial activity is that economically organized for the production and circulation of goods or services. However, some activities, although they meet the aforementioned requirements, are excluded from such a concept, such as activities of a scientific nature or of an intellectual nature, such as the provision of legal services, for example.
Despite having several points in common, the procedures have different objectives. While the legal benefits brought by the judicial recovery procedure are used in order to restore the entrepreneur or the business company that claims them, the bankruptcy procedure only aims to pay the debts of the entrepreneur or the business company.
In this way, the requirements to claim each procedure are also different. In judicial reorganization, the entrepreneur or the business company must demonstrate that, despite being insolvent, it has the economic viability to resume its activities and, with that, return to fulfill its obligations. In the opposite sense, bankruptcy presupposes breakage and economic unfeasibility of the entrepreneur or the business company to fulfill the obligations previously assumed.
It can be said, thus, that judicial reorganization is a pre-bankruptcy moment, in which an entrepreneur or business society, in the last chance, tries to use legal mechanisms to survive the economic and financial crisis experienced.
The judicial reorganization procedure begins with a request from the entrepreneur or the business company, formalized through the procedural piece called the initial petition. In this petition, the facts that led to the insolvency must be narrated, as well as the economic viability to continue the exploitation of the activity must be demonstrated.
Before formally filing the application for judicial reorganization, it is important that the entrepreneur or the business company, if possible, seek its main creditors and, together with them, draw up a judicial reorganization plan that meets both the interests of both parties. This stage is not mandatory, nor is it provided for by the law on Judicial reorganization and bankruptcy, but it is recommended that the entrepreneur or business company observe it.
With the granting of the request for judicial recovery by the competent court, the entrepreneur or the business company will use benefits to try to recover. Among the possible benefits, we highlight the suspension of executions, the possibility of granting deadlines and special conditions for the payment of obligations, salary reduction, compensation of hours and reduction of working hours, by agreement or collective agreement, among others.
If the entrepreneur or the business company, even after granting the above benefits, fails to fulfill its obligations or fails to comply with the recovery plan, the judicial recovery procedure will be converted into bankruptcy, a situation in which, at the same time, the judicial recovery procedure is terminated, considering that the entrepreneur or the business company failed to recover, and the bankruptcy procedure is initiated.
The bankruptcy procedure also begins with a request, either the request for conversion of judicial reorganization into bankruptcy or, then, the bankruptcy application itself, which can be made by the entrepreneur or business company itself, the so-called self-bankruptcy, or by private creditors.
In this procedure, the administrator of the business company is removed, and a judicial administrator is appointed to take his place. The judicial administrator begins to carry out administrative activities, but not the administration of operations, but the administration of the assets and liabilities of the bankrupt business company, with the aim of liquidating the obligations contracted and not fulfilled.
It is up to the judicial administrator, in this sense, to verify the debts of the business company and list its creditors, framing them in the so-called classes of creditors, being them: labor class, class of creditors with collateral, class of tax credits and class of common creditors, also called chirographers.
The separation of creditors into classes is based on the order of preference for the payment of the debts of the business company, which is called competition of creditors. Creditors are paid in the order mentioned above, from the labor creditor to the chirograph creditor.
It is also up to the receiver to settle the assets of the business company, so that the payment of creditors is carried out. Thus, the payment of creditors is carried out with the sales of the property belonging to the business company.
Thus, In conclusion, bankruptcy and judicial Reorganization Procedures, although they have similar starting points, the main one being the economic-financial-patrimonial crisis experienced by the entrepreneur or business society, seek different purposes. While the judicial reorganization procedure aims that the entrepreneur or the business company, through the legal benefits granted, can fulfill its obligations and continue exercising its social function, which is, in short, to generate product and/or service, employment and income, the bankruptcy procedure is used when the entrepreneur or business company no longer presents economic-financial or patrimonial viability to overcome the state of insolvency.
Anna Paula Piovesan Pinheiro
Lawyer, graduated in law, with emphasis in Civil Law, from Universidade Presbiteriana Mackenzie, enrolled in the Brazilian Bar Association, São Paulo Section (OAB/SP) (2021). Author of articles. Lawyer at TM Associados.
Firearms ownership and acquisition: Do you know how it works?
In recent years much has been said about the acquisition of firearms, about the possession and carrying of weapons in Brazil, and how these activities have undergone changes in the Bolsonaro government. But do you know how the acquisition of firearms in Brazil actually works?
First of all, we need to understand the difference between possession and possession, so we can begin to understand how the processes work.
The carrying of weapons is restricted to public security professionals, members of the Armed Forces, police and private security agents. The justification for any individual, who does not fit into the previous activities, can obtain the possession of weapons is the proof that without a firearm, the safety of this individual is so impaired that only with the presence of a public security agent 24 hours by his side this absence would be supplied. The possession once granted, can be revoked if the bearer of the weapon is in a state of intoxication, under the effect of drugs or presenting conditions that alter their motor or psychic capacity.
The possession of weapons is allowed for the common citizen and well, in Brazil, as long as some rules are followed for its marketing, maintenance and registration. Possession is the registration and authorization to obtain and purchase firearms and ammunition, to keep them in your home or workplace or for collectors, hunters and sport shooters. Remembering that possession does not authorize the owner to carry and walk with the weapon, only authorizes its possession for specific purposes.
For the possession of weapons, along with the acquisition of firearms, there are two firearms control systems, according to Decree No. 9,807 of June 25, 2019.
These systems divide the individuals qualified for the acquisition of firearms, that is, for the possession of firearms in two large groups: the CR (obtained by the CACs) and the Sinarm.
It is important to mention that for both systems it is necessary to prove the following items:
The real need to have a gun;
Proof of being at least 25 years old;
Good background, through negative certifications in military, state and federal courts;
Psychological aptitude through the performance of psychological testing done by a psychologist of the Federal Police or accredited;
Proof of lawful occupation of work and fixed residence;
Proof of technical aptitude for handling the firearm, from own courses (shooting report);
Among other documents.
CR (ACC):
The CR will be acquired by the CACs, from the acronym: “hunters, sport shooters and Collectors”, through the military weapons Management System, or Sigma, which was instituted under the command of the army of the Ministry of Defense. That is, the CR is commanded by the Brazilian Army, and the entire process of acquiring the CR will be decided by the Army.
The CR has some specifications, for example, your gun must always be stored inside a safe in your home and to be a CAC you will need, among others, a signed statement alleging the existence of this safe, for the safety of the individual and his family. With the CR the individual will be able to use his firearm for hunting, collection or for sport in shooting stands regulated by the Army, and necessarily be affiliated with a shooting club, and participate in periodic training during the year. The CR must be renewed every 10 years.
As a rule, a weapon acquired by a CAC cannot be used for the defense of its residence or its place of work, the only hypothesis in which a weapon of a CAC can be used is for the purposes for which it is intended or for the protection of the individual’s Military Collection, any other use is a crime.
SINARM:
SINARM (Sistema Nacional de Armas), on the other hand, is commanded by the Federal Police, and serves only to protect the individual’s home or work environment, that is, with a weapon registered in SINARM, the individual cannot transport his weapon, not even to shooting clubs, since the weapon serves only to guarantee the safety of his home or work environment. An exception to this restriction is the fact that an individual who has a weapon registered with SINARM may use it for training up to 1 (once) per month, and for this purpose they must obtain a specific traffic guide from the Federal Police.
For Sinarm it is not necessary to be a member of any shooting club, however, if the individual wants to own weapons of different calibers for registration in Sinarm, it will be necessary to present reports of technical aptitude for each caliber of each weapon.
The Sinarm is the registry that allows the request for possession, however, as mentioned above, the possession of firearms is restricted to public security professionals, members of the Armed Forces, police and private security agents, as well as those who prove that without a firearm, their safety would be so impaired that only with the presence of a public security agent 24h by their side this absence would be supplied.
It is important to mention that although there have been changes in the Bolsonaro government that may have “facilitated” the acquisition of firearms, this practice is still not something simple and not all citizens will be able to obtain firearms. It is still a complex practice and must be analyzed on a case-by-case basis for the authorization or not of the acquisition.
Giovanna Luz Carlos-lawyer, graduated in law, from Centro Universitário Padre Anchieta (2019), enrolled in the Brazilian Bar Association, São Paulo Section (OAB/SP) (2020). Postgraduate in Civil Procedure at Faculdade Damásio De Jesus. Head of the Litigation Department of TM Associados.
Copyright
Nowadays there is a lot of talk about copyright, especially on the internet where we have a great spread of photographs, art and original content. Do you know what copyright is? You know what they protect?
Copyright is conferred by law to individuals and legal entities, creators of intellectual works, ensuring that they can enjoy the patrimonial and moral benefits of the exploitation of their creations. The current Copyright Law was drafted in 1998 (law. Nº 9610/98) and provides for the protection of relations between creator and any other individual who uses his artistic, scientific, literary creations, such as books, sculptures, music, paintings and photographs.
For legal purposes, we can divide copyright into two large groups: moral rights and property rights.
Moral rights will guarantee the” authorship of creation ” to the creator or author of the intellectual work, that is, it is because of the moral copyright that we can determine that Faroeste Caboclo was written by Renato Russo, for example. Without this right, it would not be possible to determine the author of the work. This is a non-transferable and inalienable right.
It is the moral rights that give the author the right to change his work, regardless of whether he has already used it or not, and even the right to suspend the work or withdraw it from circulation.
On the other hand, patrimonial rights are those that refer to the economic use of the intellectual work, that is, we are talking about the right to remuneration that the author of a work has for the use of these. Contrary to moral Law, assets can be transferred to third parties and the creator can even demand compensation when his work is used improperly or unauthorized.
If the intellectual work is used without prior authorization from the creator, the person responsible for its unauthorized use will violate copyright rules and his conduct may generate a lawsuit.
It is important to mention that violating copyright is also considered a crime by Brazilian law. The crime appears in Article 184 of the Penal Code and its penalty can reach up to 4 years of imprisonment plus a fine.
Here in Brazil the intellectual work does not need to be registered to have its rights protected; the work receives protection from the moment it materializes. The record, however, serves as the beginning of proof of authorship and, in some cases, to demonstrate who first publicly declared it.
It is also important to differentiate “Copyright” from “Related Rights”. Copyright, as already mentioned, protects the author or authors of a particular work, which can be, for example, a book or a song.
On the other hand, related rights protect all those who participated and were involved in the creation of the work, such as, for example, in the case of music, the rights of the composer of the song, the music producer, the singer, the radio companies, the labels that may air this music on their radio or TV programs.
In the case of music, to be more specific, we also have different types of rights, such as:
Graphic publishing right: related to the commercial exploitation of printed musical scores. They are usually exercised by the authors or their music publishers;
Phonological law: related to the commercial exploitation of songs recorded on material support. Music publishers and record labels;
Right of inclusion or synchronization: related to the authorization for a certain musical work or Phonogram to be part of the soundtrack of a film production, soap operas, advertising plays, television station programming or a theatrical play. When it comes to the use of only the musical work performed live, the management is from the music publisher. When it comes to the use of the Phonogram, the management is the publisher and the label;
Right of public performance: related to the performance of musical works in places of collective frequency, by any means or process. This right is exercised collectively by the Societies of music holders represented by Ecad;
Right of Public Representation: related to the commercial exploitation of theatrical works in places of collective frequency. If these theatrical works have a soundtrack, authorization for the performance of the score must be obtained through Ecad.
It is also important to understand what ECAD is and why our money will end up there. ECAD is the ” Central Office of collection and distribution”, a private institution created by Law No. 5,988/73 and maintained by Federal Law No. 9,610/98, responsible for the collection and distribution of copyrights of songs to their authors, that is, it is through ECAD that the author of a song will receive for his work, as a kind of “royalties”.
The definition of the amount that will be paid to ECAD must consider several factors, such as the place in which the music will be played, the field of activity, its importance to the business, the socio-economic region of the establishment that will play the music and the type of musical use. Commercial stores, radio stations and cinemas, for example, have different charging criteria due to the nature of their activities and their musical use.
The calculation of copyright is made on the basis of the criteria established in the collection regulations and The Price List, which are set by the music associations that run ECAD.
Finally, it is worth noting that here in Brazil, 70 years after the author’s death, his work falls into the public domain. It is from this moment on that the collective begins to enjoy the work commercially freely and free of charge, that is, the patrimonial rights cease to be the monopoly of the author. The counting of this period begins on January 1 of the following year after your death, in accordance with Article 41 of Law No. 9,610/98.
Giovanna Luz Carlos-lawyer, graduated in law, from Centro Universitário Padre Anchieta (2019), enrolled in the Brazilian Bar Association, São Paulo Section (OAB/SP) (2020). Postgraduate in Civil Procedure at Faculdade Damásio De Jesus. Head of the Litigation Department of TM Associados.
Ana Carolina Gracio de Oliveira-lawyer, graduated in law, from Universidade Estadual Paulista “Júlio de Mesquita Filho” (2020), enrolled in the Brazilian Bar Association, São Paulo Section (OAB/SP) (2021). Postgraduate in Civil and Business Law from Faculdade Damásio De Jesus. Lawyer of the Litigation Department of TM Associados.