Tatiane Bagagí Faria
Lawyer at Marcos Martins Advogados
The current scenario in the Brazilian Judiciary is marked by a high number of lawsuits, most of which are related to default on obligations, as creditors are forced to resort to judicial protection to satisfy their rights by filing foreclosures.
Historically, the enforcement process has encountered many difficulties in achieving the desired effectiveness, either due to the lack of speed in the procedure or the frustration in locating the debtor’s assets, which is why it was necessary to study tools that would give the Magistrate the power to make his orders effective, making legal norms concrete and compelling the defendant to comply with his obligations
In this sense, the new Code of Civil Procedure (Law 13.105/2015) has brought efficiency to the forefront of judicial action, combined with speed, in the quest to satisfy the interests of the courts. In this area, in order to achieve maximum effectiveness in executions, it instituted a series of provisions, including article 139, IV[1], which grants the judge the power to apply non-typified coercive measures, i.e. to use the executive means it deems most appropriate in the specific case in order to reach the assets and consequently the satisfaction of the obligation.
Initially, it is important to point out that the principle of effectiveness has a direct and special impact on the enforcement process, given that the aim of this procedure is to concretely enforce the obligation owed to the creditor by reaching the debtor’s assets. In this vein, Alexandre Freitas Câmara states that enforcement is “a jurisdictional activity for transforming reality or, as has already been stated in notable doctrinal quarters, an activity that involves changes to the external physical world”[2].
Therefore, it is only right that the judge has adequate means to demand compliance with the obligation he has recognized as due, since it would make no sense to enforce decisions without the necessary instruments to enforce them.
However, when seeking to achieve the desired result, the judge must analyze, in particular, its necessity in the specific case, ensuring that there is a balance between the result sought by the enforcer and the fundamental rights of the enforced, respecting the basic constitutional principles and also provided for in articles 8, 9 and 10 of the procedural statute, which are the dignity of the human person, proportionality, reasonableness, efficiency and the adversarial process.
The principle of the dignity of the human person is one of the basic foundations of the Brazilian Magna Carta, contained in article 1, item III[3], and is a guarantee that the fundamental rights and guarantees of the human being cannot be violated. In line with this principle, the postulates of proportionality and reasonableness dictate that the atypical measure should be balanced against the result sought by the creditor, and the judge should, whenever possible, adopt the measure that is least harmful to the debtor.
From this perspective, even if there is the possibility of adopting such measures, the judge is obliged, when applying the provision, to observe the presence of equity between the generality of the rule and the peculiarities of the case, in order to harmonize the legislator’s intention with the factual reality.
Reinforcing this understanding, the noble scholar Fredie Didier Jr[4] points out that:
the process, to be due, must be efficient. The principle of efficiency, applied to the process, is one of the corollaries of the general clause of due process of law. It is indeed difficult to conceive of an inefficient due process of law. But that’s not all: it also results from the application of art. 37, caput, of the CF/88 (LGL\1988\3). This provision is also addressed to the Judiciary (DIDIER, 2013, p. 433).
Having pointed out the need to analyze the guiding principles of the process, it can be said that enforcement measures were introduced with the aim of making enforcement effective and reaching the debtor’s assets and/or forcing him to comply with his obligation in the face of the restriction of his individual rights. Therefore, the judge is faced with the challenge of balancing the adoption of measures with the minimum offense to the debtor’s rights, so that enforcement is effective and at the same time there is no over-enforcement with the restriction of individual rights and guarantees. The characteristics of the parties and the specific case must be analyzed in a very particular way, with a view to verifying the financial condition of those involved, both the executor and the executed, the amount of the execution, the attempt to locate assets and property by less coercive means, which are traditional tools of execution proceedings, so as not to invasively harm the fundamental rights and guarantees of the executed and bring effectiveness to the process.
In this respect, there is no point in ordering the suspension of the defendant’s driver’s license if he uses this document to earn income, as is the case with taxi drivers, truck drivers, etc. In this hypothetical case, the application of the measure would be a form of “punishment” and not an effective one, as it would make it even more difficult to fulfill the obligation because of the impossibility of carrying out their work.
On the other hand, in the judgment of HC No. 478963, whose patient is the former soccer player Ronaldinho Gaúcho, the Superior Court of Justice (STJ)[5] denied a preliminary injunction aimed at reversing the decision of the Rio Grande do Sul Court of Justice which ordered the seizure of his passports as a way of demanding payment of a fine imposed in an environmental lawsuit brought against the former player. Thus, given the purchasing power of the defendant and his default, the judge considered it effective to apply this measure in order to induce payment of the fine.
In this way, it can be concluded that, despite the current code being in force for three years, there is still a lot of disagreement between doctrine and case law as to the applicability of such measures in enforcement proceedings. However, from what has been ascertained, the great north of this institute is the analysis of the specific case in line with the principle of effectiveness, since this is what is sought when adopting such measures to the executed party. Therefore, the application of atypical coercive measures in a disproportionate manner would not achieve the intended objective and would also violate the fundamental rights and guarantees of the defendant, completely distorting what is sought.
In this way, the proportionality of the execution and the measure to be applied must be weighed up, seeking to ensure that its use is effective in order to satisfy the obligation, while avoiding the generalization of such measures in execution proceedings in which the necessary requirements for their applicability are not present.
[1] BRAZIL. Law 13.105, of March 16, 2015. Code of Civil Procedure. Explanatory memorandum to the Code of Civil Procedure. Available at: [www2.senado.leg.br/bdsf/bitstream/handle/id/512422/001041135.pdf]. Accessed on: 21.03.2019.
[2] CÂMARA, Alexandre Freitas. The effectiveness of execution and the efficiency of executive means: in defense of atypical means and the seizure of unseizable assets. Civil execution and related themes. From the CPC/73 to the new CPC. São Paulo: Ed. RT, 2014.
[3] BRAZIL. Constitution (1988). Constitution of the Federative Republic of Brazil. Brasília, DF: Senado Federal: Centro Gráfico, 1988.
[4] DIDIER JR., Fredie. Notes on the realization of the principle of procedural efficiency. In: FREIRE, Alexandre et al. (Org.). Novas tendências do processo civil. Salvador: JusPodivm, 2013.
[5] STJ – HABEAS CORPUS No. 478.963 – RS (2018/0302499-2) – Reporting Justice Francisco Falcão, Date of Judgment: 10/12/2018 – Date of Publication: DJe 12/12/2018.
