A prisão civil como técnica processual coercitiva na execução de obrigação alimentar decorrente de ato ilícito

Abstract

This dissertation intended to research about the appropriateness of the civil prison in the compliance with the judgment resulting from an illicit act. This object is closely linked to the PPGDIR UFES concentration area "Justice, Process and Constitution", within the research line "Process, Constitutionality and Protection of Existential and Patrimonial Rights". For the analysis of the issue, the study started from the general concepts of maintenance obligations and approached its characteristics and classifications. The aim was to verify the maintenance characteristic of the maintenance obligations provided as a result of the illegal act. This maintenance obligation is established based on articles 948 and 950 of Civil Code. The maintenance obligation based on art. 948, of that Code, in the case of homicide, is aimed at the dependents of the person who passed away, and under the terms of art. 950 of Civil Code is fixed for the victim of the disabling injury. The Civil procedure Code, in compliance with constitutional guidelines, established the observance of constitutional principles and norms, as the principle of efficiency and the fundamental right to executive protection. In view of the fundamental right to the execution protection, the rules of the execution process must be interpreted in such a way as to give priority to the realization of credit. The Civil procedure provides executive techniques for the maintenance obligations’s execution which are regulated in articles 528 and nexts of the code. Among these techniques is the civil prison. Civil prison, a technique authorized by the Federal Constitution, is only applicable to compel the debtor to pay the alimony. The federal Constitution, in a previous and abstract way, made the balance between the debtor's freedom and the creditor's dignity, prioritizing the principle of human dignity and the creditor's life. The exceptionality of the civil prison is not in the privilege of the origin from which the credit is generated, but in the maintenance character, as the creditor's urgency to receive the maintenances. Because of that, civil prison is restricted to current maintenance, which requires only the last three provisions, as established in art. 528, §7° of Civil procedure Code and in standard 309, of the STJ. Therefore, the civil prison application is related to vulnerability, the urgency of the service and the creditor's dignity. Ensure that the creditor maintenance resulting from an unlawful act depends on the maintenance to keep ones dignified life, so that the procedural right must confer the instruments and techniques capable of compelling the debtor to comply with the obligation