Critérios e limites na aplicação das medidas coercitivas atípicas do art. 139, IV do Código de Processo Civil na execução para pagamento de quantia certa contra devedor solvente

Abstract

The typicality of the executive means has been connected to a certain State conception for a long time. For a long time, the Brazilian executive procedure was sustained by the typicality of the executive acts, mostly regarding the financial obligation. Although, the lawmaker has been changing this scenery since CPC/1973, with a progressive relativization towards the non-financial obligations brought by the procedure law reformation by the following laws: law 8.952/1994, law 10.444/2002 and law 11.232/2005, it was still not allowed the use of the atypical means in the financial obligation. Seeking for a conflict resolution, the current civil procedure code brought new institutes, in order to enable higher resolution combined with satisfying activity to the execution, effectiveness being guaranteed to the jurisdictional protection, implanting the atypicality principle into the enforcement means. This process got relevance towards the general clause regarding actualization of the court decisions, because it has brought several devices that would reinforce the atypical’s principle. The 139, IV, CPC/2015’s article brought to the process the possibility of the judge to abdicate the atypicality measures in the enforcement, which can be direct or indirect, and it must be the most suitable way to the concrete case. This current research objective is to examine the judge’s criteria and boundaries of the statement measures into the art. 139, IV, CPC/2015, which warrant inductive measures, atypical coercive measures, essencial measures and subrogatory atypicality to give jurisdictional protection more effectiveness, financial obligation included, analyzing the appliance foundation of executive measures atypicality’s associated to the CFRB/1988 and the juridical ordering’s principle. In order to adequate to the areas of Justice, Process and Constitution, within the research Process, Constitutionality and Protection of Existential rights, always looking for the execution of the CFRB/1988, emphasizing in the creditor’s essential rights, as well as an efective judicial process. The current research will start from a bibliographic analysis and will follow a deductive approach method, starting from the theories and the law to analyze of a specific phenomenon. This way, what are the criterias and indispensable limits to the use of atypical coercive measures? We can presume that, considering the required search of the effectiveness of the process, in order to guarantee the satisfaction to the credit, giving a possibility to the creditor the essential right to the satisfactory executive protection, making possible the use, when the criterias and limits are considered, the required atypical coercive measures to the satisfaction of the execution. Thence, is required to study suitable means to discourage those executed who could show wealth signals, so they cannot frustrate the executive procedure, Which can be made applying measures that won’t damage its fundamental rights, and those who are insolvent debtors which owns no heritage available to pay the debts, wouldn’t get punished by the coercive measures