Acórdão nº 2863/15.6T8GMR-E.G1 de Tribunal da Relação de Guimarães, 20 de Outubro de 2016
Magistrado Responsável: | JOÃO PERES COELHO |
Data da Resolução: | 20 de Outubro de 2016 |
Emissor: | Tribunal da Relação de Guimarães |
Acordam no Tribunal da Relação de Guimarães: I. RELATÓRIO: Inconformados com o despacho que indeferiu liminarmente o requerimento de exoneração do passivo restante que formularam, B. e mulher, C. , interpuseram o presente recurso, em cuja alegação formularam as seguintes conclusões: 1 – A decisão recorrida indeferiu liminarmente o pedido de exoneração do passivo restante formulado pelos recorrentes, porquanto entendeu que se verificava a previsão das alíneas d) e e) do n.º 1 do artigo 238º do CIRE; 2 – Concluiu o tribunal recorrido que, dos factos dados como provados, resulta demonstrado que a conduta adoptada pelos insolventes em 2005 provocou prejuízo para os credores pela omissão de apresentação à insolvência no prazo de seis meses após o conhecimento dessa situação; 3 – Inferiu ainda o tribunal a quo que se encontra indiciada a probabilidade da existência de culpa dos recorrentes na criação ou agravamento da situação da insolvência; 4 – Porém, foi proferido nestes autos e já transitou em julgado o despacho que qualificou a insolvência dos aqui recorrentes como fortuita; 5 – O prejuízo a que alude a al. d) do n.º 1 do artigo 238º do CIRE, entre os demais pressupostos cumulativos, deve ser efectivo e integrante de factos carreados e demonstrados por credores ou pelo administrador da insolvência; 6 – Não foram alegados nem provados factos, pelos credores ou pelo Sr. administrador da insolvência nomeado, que permitam concluir pela ocorrência de um efectivo prejuízo sofrido por aqueles, decorrentes da não apresentação à insolvência pelos recorrentes; 7 – Os créditos contraídos pelos recorrentes, pela sua natureza, montante e momento não impõem a conclusão de que aqueles assumiram uma conduta ilícita, desonesta, pouco transparente ou de má-fé; 8 – Deveria ter sido dado como provado e consequentemente considerado pela decisão recorrida que os insolventes foram tentando pagar as dívidas contraídas aquando da prestação de avais, que os conduziram à situação de insolvência, tendo efectuado várias tentativas para negociar as mesmas com os credores; 9 – O despacho recorrido viola, por erro de interpretação, o disposto no artigo 238º, nº 1, alínea d); 10 – Na fundamentação do despacho recorrido sustenta-se, por um lado, que a figura da exoneração do passivo restante tem de ser vista como uma excepção e não a regra no nosso ordenamento jurídico e, por outro lado, quando faz impender sobre o devedor insolvente o ónus de alegar e demonstrar que cumpre os requisitos para que seja proferido despacho inicial de exoneração do passivo restante; 11 – A tese veiculada no despacho recorrido não é conforme à jurisprudência maioritária, a qual considera que o devedor não tem que apresentar prova dos requisitos previstos nas diversas alíneas do nº 1 do artigo 238º do CIRE, competindo, antes, aos credores e ao administrador da insolvência a sua prova, por constituírem matéria de excepção; 12 – Os requisitos enumerados nas várias alíneas do nº 1 do artigo 238º do CIRE não constituem factos constitutivos do direito do devedor requerente da exoneração do passivo, mas sim factos impeditivos desse direito a ser alegados pelos credores, que, para esse desiderato, deverão alegar e demonstrar o eventual prejuízo que tenham efectivamente sofrido em consequência do atraso do devedor na apresentação à insolvência, nos termos do artigo 342º, nº 2, do Código Civil; 13 – Não existem, nos autos, quaisquer elementos que nos permitam concluir pela prática de qualquer acto por parte dos aqui recorrentes conducente a causar prejuízo aos credores, o qual não se reconduz ao mero vencimento de juros moratórios; 14 – Não tendo sido provado pelos credores tal desiderato, não poderá o Tribunal a quo concluir pela existência de culpa grave na ignorância de inexistência de uma perspectiva séria de melhoria da situação económica do devedor; 15 – Competindo a alegação e prova dos factos constantes nas diversas alíneas do artigo 238º, nº 1, do CIRE, aos credores e administrador de insolvência, na sua falta, como é manifestamente o caso dos autos...
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