Analysis of the Constitutionality of Section IV of Article 48 of Law 11.101/05

Abstract

The purpose of this article is to consider, supported by the constitutional principle of personhood of the penalty, the constitutionality of section IV of article 48 of law no. 11.101/05, that requires that the administrator or controlling partner of a company has not been condemned of bankruptcy crime for granting the corporate reorganization. The legislator, in drafting the new Law on Bankruptcy and corporate reorganization, maintained the impediment already provided in the old Enactment no. 7.661/45, article 140, section III, which prohibited, more broadly, the grant of the corporate reorganization in existence of criminal condemnation of various kinds, including bankruptcy crimes. By remaining such a requirement, it can be touched the explicit confrontation between the Constitution, which states that the penalty should not pass from person condemned, and Law No. 11.101/05, which creates a restriction on the granting of a benefit to a person (legal ) for the crime of another person. It is this confrontation that questions this research, in order to elucidate if the item IV of Article 48 of Law No. 11.101/05 is constitutional under Article 5, paragraph XLV, of 1988 Constitution. To achieve the desired purpose, it was analyzed, through a historic construction, the concept of legal person and its rules. (See more...)