Restitution of the proceeds of wrongdoing in the court-supervised reorganization and bankruptcy proceedings
Abstract
In a context where the court-supervised reorganization petitions of companies involved
in corruption schemes are being granted, with considerable chances of conversion from
reorganization to bankruptcy, this article analyzes how the restitution of the proceeds of
wrongdoing should occur in the court-supervised reorganization and bankruptcy proceedings.
Such analysis is carried out by clarifying the main aspects and effects of confiscation on
bankruptcy law, adjusting the doctrines of Law n. 11.101 / 2005, without affecting the internal
coherence of its system. Based on this analysis, we conclude that the forfeiture of the proceeds
of wrongdoing, as an immediate result of a judgment or a settlement applying such sanction,
because it constitutes a true transfer of ownership in favor of the State, produces the exclusion of such values from the scope of the court with exclusive jurisdiction over the bankruptcy estate.
Therefore, they must be promptly restituted, by means of the proceeding analogous to the one
established in Articles 85 to 93 of Law n. 11.101 / 2005.
Author Biography
Marlon Tomazette
Bachelor of Laws degree from Universidade de Brasília (1997), specialization
in the Training of Counsels for the National Social Security Institute (INSS) from
Universidade de Brasília (1997), graduate specialization course in Civil Procedural
Law from the Instituto Brasiliense de Ensino e Pesquisa (2000), a Master of Laws
degree from Centro Universitário de Brasília (2007), and a Ph.D. in Law from
Centro Universitário de Brasília (2014). He is currently a Counsel at the Office of
the General Counsel of the Federal District, full professor at Centro Universitário de
Brasília, Professor of the Superior School of the Prosecution Office of the Federal
District and Territories, and PROFESSOR of Instituto Brasiliense de Direito Público.
Débora Costa Ferreira
Master’s degree in Constitutional Law from Instituto Brasiliense de Direito Público
- IDP. She graduated in Law from Centro Universitário Brasília (2014), and in
Economic Sciences from Universidade de Brasília (2014) and holds a specialization
in Constitutional Law from Instituto Brasiliense de Direito Público - IDP (2015).
Nivaldo Dias Filho
Bachelor of Civil Engineering degree from Universidade Federal do Paraná. He is
an External Control Federal Auditor - Department of External Control at TCU since
2008. He worked as Federal Forensic Expert of the Federal Police.