Aubrey Renan de Oliveira Leonelli
Lawyer at Marcos Martins Advogados
We have seen some cases in which the judge, accepting the plaintiff’s request for an injunction, even before hearing the opposing party, or even ex officio, orders the Defendant to set up capital to guarantee the pension claim included in the initial petition.
The issue of the constitution of capital is expressly provided for in Article 475-Q of the Code of Civil Procedure. Let’s take a look at the provision:
Art. 475-Q. When compensation for an unlawful act includes the payment of maintenance, the judge may order the debtor to set up a capital, the income of which will ensure the payment of the monthly amount of the maintenance. (Included by Law No. 11.232, of 2005)
§ Paragraph 1 – This capital, represented by real estate, public debt securities or financial investments in an official bank, shall be inalienable and unseizable for the duration of the debtor’s obligation. (Included by Law No. 11,232 of 2005)
§ Paragraph 2 The judge may replace the constitution of the capital by including the beneficiary of the benefit on the payroll of a public law entity or private law company of notorious economic capacity, or, at the request of the debtor, by a bank guarantee or real guarantee, in an amount to be arbitrated immediately by the judge. (Included by Law No. 11.232, of 2005)
§ Paragraph 3 – If there is a change in economic conditions, the party may request, depending on the circumstances, a reduction or increase in the payment. (Included by Law No. 11.232, of 2005)
§ Paragraph 4 – Maintenance may be set based on the minimum wage. (Included by Law No. 11.232 of 2005)
§ Paragraph 5 Once the obligation to pay maintenance has ceased, the judge shall order the capital to be released, the payroll deduction to cease or the guarantees provided to be canceled. (Included by Law No. 11.232, of 2005)
The point is that the capital constitution injunction is confused with the very raison d’être of the action.
In the current procedural system, there are two types of preliminary injunction: precautionary and satisfactory. In the first case, what is sought is the protection of the right to avoid injury or its perishing during the course of the proceedings. In the second case, we seek the good of life itself, granted on a provisional basis.
Brazilian law allows both types of preliminary injunction to be granted, provided that the legal requirements are met.
In order to grant the request for the constitution of capital by means of an injunction, the case must be accompanied by sufficient evidence to demonstrate the verisimilitude of the right and the risk of irreparable damage or difficult reparation. As the request for advance payment for the constitution of capital coincides with the granting of the request for alimony, the procedural cognition would have to be almost exhaustive, resembling the liquid and certain right required for the granting of a writ of mandamus.
However, there is not enough evidence to demonstrate this “liquid and certain right” for this type of claim, since proceedings involving the right to alimony are, as a rule, highly contentious, with each party trying to prove or disprove the other’s claims.
This is not the understanding of the courts:
EMENTA: AGRAVO DE INSTRUMENTO Anticipation of relief – For it to be granted, the relevance of the grounds is not enough, but the legal requirements and conditions of the action must also be demonstrated, since the anticipated measure will grant the exercise of the very right asserted by the plaintiff, albeit on a provisional basis – Absence of the verisimilitude of the allegation and the well-founded fear of irreparable damage or difficult reparation – Appeal dismissed. (TJ/SP. Interlocutory Appeal Case no. 2061806-51.2013.8.26.0000. Rapporteur: ALCIDES LEOPOLDO E SILVA JÚNIOR. Judging Body: 1st CHAMBER OF PRIVATE LAW. Judgment: 11/02/2014. emphasis added).
It should be emphasized that the Civil Procedure Law’s provision regarding the possibility of constituting capital applies only to final judgments. The literal interpretation of the legal rule in question points to this understanding, as it refers to indemnification and not to the request for indemnification, so there is no need to talk about the constitution of capital in the context of a preliminary injunction request.
It should be remembered that the constitution of capital is a measure to protect people who depend on alimony as a result of an event that has taken away their means of subsistence. This is a very onerous burden for the judgment debtor. For this very reason, it is only granted when there is a decision on the merits of the debated issue, when the parties have already undergone the entire cognition and adversarial process.
It is obvious that when a lawsuit is filed, there is still no pension to be guaranteed by the constitution of capital. What exists is a mere expectation of a right that may or may not arise from the process. Applying the provisions of article 475-Q of the Code of Civil Procedure before the defendant has even been served with a summons is to admit pre-judgment by the magistrate, i.e. the judge has already made up his mind without the defendant having been given the opportunity to comment on the case. There hasn’t even been an objection on the record and the claim is already being considered well-founded! We are admitting a violation of the Principle of the Presumption of Innocence enshrined in art. 5, LVII, of the Magna Carta!
How is it possible for the Defendant to be forced to put up a guarantee because of an interlocutory decision granting preliminary injunctive relief and have his assets recorded as inalienable and unseizable? How does this interlocutory decision fit in with the Brazilian democratic system and the freedom to exercise economic activity, provided for in articles 1, item IV, 5, items LIV and LV, 170, sole paragraph, all of the Federal Constitution?
Therefore, based on the Brazilian Democratic State of Law, the preliminary injunction for the constitution of capital should not be admitted, in view of its high damaging power and its offensive character against the Constitution in articles 5, LVII, LIV and LV, and 170.
