BUSINESS OVER-INDEBTEDNESS AND THE ANALOGOUS APPLICATION OF LAW 14,181/2021 TO MICRO AND SMALL ENTERPRISES: FOUNDATIONS, LIMITS AND EFFECTIVENESS PERSPECTIVES

Abstract

The persistence of high default rates among micro and small enterprises (MSEs) in Brazil, aggravated by the scenario of high interest rates and restrictive credit, evidences the fragility of legal instruments available for addressing the economic-financial crisis of these business agents. Law No. 14,181/2021 introduced into the Consumer Protection Code a microsystem aimed at preventing and treating over-indebtedness, expressly restricting its application to the consumer natural person, as set forth in article 54-A, §1. Such scope left outside normative protection the MSEs constituted as legal entities under Complementary Law No. 123/2006, although they experience economic-financial vulnerability functionally equivalent to that of the over-indebted consumer. This research aims to analyze the foundations, limits, and effectiveness perspectives of the analogous application of Law No. 14,181/2021 to MSEs, demonstrating that such application does not derive from direct extension of the legal text but from a legal construction grounded in article 4 of the Law of Introduction to the Norms of Brazilian Law, in the mitigated finalist theory consolidated by the Superior Court of Justice, and in the favored treatment ensured to MSEs by articles 170, IX, and 179 of the Federal Constitution. A qualitative methodology was adopted, with bibliographic review, jurisprudential analysis, and examination of empirical data from Sebrae and Serasa Experian. The results suggest the practical insufficiency of the special plan of articles 70 to 72 of Law No. 11,101/2005, configuring a functional gap that may justify the analogous application, on a partial basis and through objective criteria, of the over-indebtedness institutes to Brazilian micro and small enterprises.