With modulation of effects, the Superior Court of Justice (STJ) admits appeals against all interlocutory decisions in bankruptcy or insolvency proceedings.

In a judgment on repetitive special appeals (Topic 1,022), the Second Section of the Superior Court of Justice (STJ) established that an interlocutory appeal is admissible against all interlocutory decisions issued in judicial reorganization or bankruptcy proceedings, pursuant to article 1,015, sole paragraph, of the Code of Civil Procedure.

However, the panel decided to modulate the effects of the thesis, which should be applied to interlocutory decisions issued after the publication of the judgment that established the qualified precedent and to all appeals filed before the establishment of the thesis and that are still pending judgment on the date of publication of the judgment, excluding only appeals that were not heard by the courts due to a final and unappealable decision.

Reporting on the special appeals, Minister Nancy Andrighi explained that, under the appeals system adopted by the CPC (Brazilian Code of Civil Procedure), there are two different models for appealing interlocutory decisions. For decisions in the discovery phase, an appeal will be possible in the cases listed in article 1,015, observing the mitigation of the exhaustiveness of this list, according to Topic 988, judged by the Special Court.

For decisions in the settlement and enforcement phases of a judgment, in the execution process and in probate proceedings, an interlocutory appeal is admissible against all interlocutory decisions, in accordance with article 1,015, sole paragraph, of the CPC (Brazilian Code of Civil Procedure).

Change in the system

According to the rapporteur, although the Bankruptcy and Judicial Reorganization Law (Law 11.101/2005) provides for the admissibility of interlocutory appeals in specific cases, it must be taken into account that, at the time of its publication, Brazil was governed by the 1973 Code of Civil Procedure, which provided for an appeals system – in relation to interlocutory decisions – diametrically opposed to the regime established by the 2015 Code of Civil Procedure.

"Therefore, given that the appeals system has been profoundly modified by the CPC/2015, it is also necessary to redefine the grounds for appeal that were scattered throughout Law 11.101/2005, adapting them to the model of appealability of interlocutory decisions established by the new procedural law, especially from the perspective of the legal nature of reorganization and bankruptcy proceedings," the minister pointed out.

Liquidation and execution

In her vote, Nancy Andrighi explained that the reorganization process has the legal nature of liquidation and negotiated execution of the debts of the legal entity, while the bankruptcy process has the nature of liquidation and collective execution of debts.

For this reason, the rapporteur understood that the best interpretation of article 1,015, sole paragraph, of the CPC/2015, is that the immediate appealability of interlocutory decisions in the liquidation phase and in the execution process "also includes processes that, although governed by special legislation, also have the legal nature of liquidation and execution, as is the case, for example, of recovery processes and bankruptcy processes provided for in Law 11,101/2005".

In proposing the modulation of effects, Nancy Andrighi also considered that, to protect those who relied on the impossibility of appealing outside the hypotheses foreseen by Law 11.101/2005 and therefore did not file an interlocutory appeal, the decisions that were not the subject of an appeal may be challenged in an appeal or in counter-arguments, pursuant to article 1.009, paragraph 1, of the CPC/2015, if the interested party believes that it will still be useful to address the issue at another procedural moment.

Source: STJ