Alessandra Renata Rasquel Noronha
Lawyer at Marcos Martins Advogados
The main reason for the recent reform of Brazilian civil procedural legislation was the concern with the effectiveness of judicial protection, especially executive protection, since it has always been clearly difficult for creditors to enforce amounts against debtors.
The application of the atypical nature of executive means gained strength with the new Code of Civil Procedure, whether through the application of obligations to do or not to do and the delivery of things (Art. 536, §1º and 538, §3º[1]), or through the powers, duties and responsibilities of the judge and judicial assistants, as well as those of the subjects of the process.
Thus, the magistrate now has a general power and duty to order, regardless of the nature of the situation, all coercive, subrogatory, mandatory and inductive measures that he deems necessary to seek fair, effective and timely relief.
The Code of Civil Procedure has indisputably laid out the scope of the application of atypical means in enforcement, allowing the magistrate to choose and even combine the most satisfactory enforcement means to collect the enforced debt.
The authorization for the application of atypical means in execution is inserted in Article 139, item IV of the CPC:
Article 139. The judge shall conduct the proceedings in accordance with the provisions of this Code:
IV – determine all the inductive, coercive, mandamus or subrogation measures necessary to ensure compliance with a court order, including in actions that have as their object a pecuniary payment;
Undoubtedly, unconventional enforcement measures are a significant mechanism for controlling the effectiveness of judicial protection, and the use of article 139, item IV of the CPC/2015 induces the debtor to pay the debt by imposing a coercive measure, such as the suspension of a driver’s license or the suspension of operating licenses or permits until the enforcement is resolved.
However, despite the expansion of powers brought about by the procedural reform, the judge’s actions must adhere to constitutional limits, always with impartiality and reasonableness.
The possibility of applying atypical means in enforcement is controversial and is being debated by scholars and also in the Courts of Justice. In fact, the São Paulo State Court of Justice, in application of Article 139, item IV of the CPC, ordered the suspension of the defendant’s driver’s license, the seizure of passports until the debt is effectively paid, as well as the cancellation of credit cards.[2] In other words, these are clear examples of the application of atypical forms of enforcement to induce the defendant to pay the debt.
The Permanent Forum of Civil Proceduralists has issued statement no. 12, which reads:
Atypical subrogation and coercive measures may be applied to any obligation in the enforcement of a judgment or extrajudicial enforcement order. These measures, however, will be applied in a subsidiary manner to the typical measures, with observation of the adversarial process, even if deferred, and by means of a decision in the light of art. 489, § 1, I and II.
It should be emphasized that in order to apply atypical means in execution, the principles of objective good faith and the principle of cooperation, set out in articles 4, 5 and 6 of the CPC/2015, must be observed. The magistrate must observe the constitutional parameters (Article 5, CF), i.e. the principle of human dignity, legality, proportionality and procedural parameters set out in Article 8 of the Code of Civil Procedure[3], i.e. in order to meet social ends and the requirements of the common good.
To protect the atypical nature of executive means is to seek to guarantee the effectiveness of court judgments, coercing the debtor to pay the debt, even though the measure does not result in actually obtaining the relief itself, i.e. payment, it serves to compel the debtor to leave the “state of inertia” in the process and actually act and seek to resolve the conflict.
In this sense, it is clear that atypical means of enforcement cannot, in any way, be used with the intention of “punishing” the debtor, since this would be in direct conflict with current constitutional norms; on the contrary, they are used to seek effective protection in enforcement.
What’s more, when applying atypical means, a number of points need to be observed, namely: verification that the atypical measures will in some way help to achieve the desired relief, in a timely, appropriate and effective manner, proof that the debtor is evading payment of the debt even though they have the financial means to do so, the relevance of the factual and legal situation addressed in the case and the best course of action to be adopted by the magistrate.
Thus, in all cases it is important to ensure the purpose of the rule and the ways in which atypicality can be used, in order to ensure the effectiveness of the relief sought and the fair outcome for both parties.
Therefore, it is indisputable that atypical measures cannot be applied indiscriminately and without justification so that there is no abuse on the part of magistrates and also damage and offense, often without utility, to fundamental rights inherent to the human person.
Marcos Martins Advogados is able to advise its clients in the effective search for the best resolution of executive conflicts, including, as far as possible, the application of atypical means in executions.
[1] Art. 536. § Paragraph 1 – In order to comply with the provisions of the heading, the judge may order, among other measures, the imposition of a fine, search and seizure, the removal of persons and things, the undoing of works and the prevention of harmful activity, and may, if necessary, request the assistance of the police.
Art. 538. § Paragraph 3 The provisions on the fulfillment of an obligation to do or not to do shall apply to the procedure provided for in this article, where applicable.
[2] São Paulo State Court of Justice. Execution of extrajudicial title nº 4001386-13.2013.8.26.0011, of the 2nd civil court of the São Paulo Court of Justice, Judge Andrea Ferraz Musa, São Paulo, SP, August 25, 2016. Available at: <https://esaj.tjsp.jus.br/pastadigital/abrirDocumentoEdt.do?nuProcesso=4001386-13.2013.8.26.0011&cdProcesso=0B0012QC40000&cdForo=11&baseIndice=INDDS&nmAlias=PG5REGDS&tpOrigem=2&flOrigem=P&cdServico=190101&ticket=8pxtiCODOpFbyo6bQn7kIMo7DbaRQP0ciU9v3jTQY9CCy4IUZbNOKN4F0xYudKlvOebcg5zAdP8aZykYeF7MqH01dlp92%2BGHI0iHgKWVoS2vkQg%2Fd2Uzp%2BGny%2BKR%2BYOwE4ZYwx65w7OX4pS93VVORsBZpiHhBJhukReAZVN0TXLT5xLC%2Bl7YWqFsBQcY0A4oOtB5P1Ka6G%2BR7zn1kzFYoYyd9%2FJHoeG1pfI3wBe2zZw2Zy76ciWSfDi7mBSTwnbPX%2Fj6i5dnd3gxMQ7Kvd4jLGdzl7p5lGm1s3xPWlRfd04%3D>. Accessed on: April 20, 2018.
[Art. 8: When applying the legal system, the judge shall take into account social ends and the demands of the common good, safeguarding and promoting the dignity of the human person and observing proportionality, reasonableness, legality, publicity and efficiency.
