Author: Ophir Cavalcante Junior

Source: Jornal do Brasil, 07/04/2009

Ophir Cavalcante Junior - LAWYER AND DIRECTOR OF OAB NACIONAL

One of the biggest obstacles to attracting investments to Brazil has always been the question of the legal security of contracts. The Brazilian Judiciary has been criticized numerous times for causing, with its decisions, insecurity for foreign capital to contribute to Brazil, especially when it opposed these contracts, invoking the protection of human dignity and social interests. This criticism, in a way, echoed and was absorbed by the Judiciary without any reaction.

However, the greatest contributions to legal uncertainty have always been made by the Legislative and Executive Powers. Actually, this is not exactly legal insecurity, but legislative insecurity and excessive state bureaucracy with the effects being debated and decided by the Judiciary, as defended by Profa. Maria Tereza Sadek (senior researcher at the Brazilian Center for Judicial Studies and Research) and she demonstrates this statement in numbers. Data from the Institute of Technological and Economic Research indicate that an average company must follow 3.203 tax rules, which involve more than 55.757 articles, 33.374 paragraphs, 23.497 items and 9.956 paragraphs. Another survey by the Brazilian Institute of Tax Planning (IBPT) shows that a company in Brazil is subject to 3.628.013 rules, of which 235.900 are tax laws and that there are 3.792 ordinary laws (949 in the tax area); 651.228 complementary or ordinary laws (27.611 tax) and 2.160.395 complementary rules (159.430 tax).

Due to the bureaucracy imposed by the State, in order to fulfill its federal, state and municipal tax obligations, a company today consumes 2.600 hours, that is, more than three months: 108 days and eight hours, which represents more than the twice as much as in Bolivia (1080 hours) or in Vietnam (1050 hours), without comparing, for example, with Switzerland, where the company spends 63 hours a year with its tax obligations.

To contribute a little more to this insecurity, the Federal Senate passed PEC 12 in no time, by which states and municipalities will have a new regime to pay their debts collected by the known Precatorios, that is, a court order extracted after years and years of a lot of judicial debate with countless resources from the Public Power trying to get rid of the convictions imposed on it by the Judiciary.

So far they can do so in eight years, be it food debts (salaries, pensions, pensions and the like), debts arising from expropriations, or due to non-payment of works and services, among others. Food debts were preferred in payment in a chronological order, being updated and with interest of 12% per year. If they were not paid in the year following receipt by the Government, the Judiciary determined the sequestration of the amounts for payment.

According to the approved proposal, the time will be extended, on average, to fifteen years, since the precatory payments over 30 or 40 minimum wages, depending on the origin of the credit, may be paid in that period or will be restricted to a percentage of the respective annual net revenues ( 2% in the case of states and 1,5% in the case of municipalities). Of this total, 40% will be used to pay the Precatorios in full in ascending order of value and 60% will go to creditors who agree to receive only a fraction of what they are entitled to (electronic auction). These debts will be corrected only by the TR plus 0,5% per month, and this special regime removes the possibility of the Judiciary to enforce its decisions on states and municipalities through the sequestration of values.

What is the reason for this change in the rules of the game? The loss of something around R $ 100 billion in the accounts of states and municipalities due to mismanagement and misuse of public resources. Governors and mayors hired and did not pay, the successors do not want to pay and those who will pay are retired pensioners, public servants; the citizen who has been the victim of aggression by the State or its agents; the one who lost the property because the Public Power took possession of it. Finally, thousands of Brazilians who had the audacity to fight for their rights and have the government on the other side.

As can be seen, it is an amendment to the Constitution on a case-by-case basis and weakens the Judiciary by not making the judicial decision effective, which may even be the subject of an electronic auction, relativizing the power of res judicata simply because governors and mayors are in trouble. administrative, that is, the prevalence of political interests - or politicians - is preached over legal certainty. Consequence of this: uncertainty, insecurity and, above all, the fear of negotiating with the Public Power, causing a legal and morally harmful effect to society, that is, the overpricing of prices as a way to defend against eventual non-payment on time.

Perhaps the senators, who are certainly very busy and concerned with explaining the denunciations of misdemeanors in the Senate, did not pay attention to the fact that the approval of PEC 12 will have extremely damaging internal and external repercussions to the image of the Brazilian State, which will be recognized as the State of Calote, as the President of the OAB, Cezar Britto has proclaimed.