Precatórios: negócios, mercado e regulação

Abstract

Assuming that the balanced intervention of the State in the economy to impose the necessary limit on the performance of market agents is valid, this dissertation was produced based on research developed with the objective of verifying whether the negotiation of objects backed by court-ordered payments, through electronic platforms, is subject to regulation by the Brazilian Securities and Exchange Commission (CVM) and the Central Bank of Brazil (BACEN). To answer the question outlined, the legal-dogmatic aspect was used to carry out a bibliographic review and normative analysis of official data and judicial and administrative decisions. The study of the legislation applicable to court-ordered payments and the transmission of credits that it represents was fundamental for understanding the economic interests involved in its negotiation. As an example of losses to which investors are subject, the political and legislative risks that may result in changes in payment conditions, the reconsideration of the decision that ratifies the assignment of debtor debt, its cancellation and its attachment, especially when it serves as a backing for the object traded through an electronic platform, as the borrowing company is subject to judicial reorganization or bankruptcy. The investment can take place directly, through a credit assignment signed with the original holder and, in this case, there is no need to talk about regulation by the CVM and BACEN. CVM regulation is attracted if such credits are transmitted indirectly a) by the Non-Standardized Credit Rights Investment Fund (FIDC-NP), or b) by a company that issues securities backed by court orders to investors through electronic platforms. Considering that court-ordered payments is the procedure that allows the collection of a credit, it does not qualify as one of the securities provided for in items I to VIII, of art. 2 of Law n. 6,385/1976. Based on the analysis of administrative proceedings judged by the CVM, it was concluded that, in order to characterize a security, the effort of the entrepreneur who carries out public fundraising must take place after its issuance (item IX of art. 2 of Law n. 6,385 /1976). In the intermediation of financial resources by digital correspondents of financial institutions and by peer-to-peer loan companies, it was found that borrowers of resources commonly use the issuance and endorsement to investors of Bank Credit Notes, and it was found that prior authorization from the BACEN must be obtained whenever the negotiation of credits backed by court-ordered payments characterizes a private activity of a financial institution (art. 17 of Law n. 4,595/1964). Comparing these results with the control that the Brazilian State grants to Simple Credit Company and to factorings, it was possible to perceive a certain lack of uniformity in the state regulation of subjects authorized to professionally carry out the activity of moving financial resources. Finally, a new research agenda is suggested, such as the one in which it is proposed to comparatively verify the responsibility of the various types of agents involved in the negotiation of credits backed by court-ordered payments, including in foreign legal systems.