Medidas executivas atípicas na execução por quantia certa: as limitações impostas pela legislação brasileira à atuação do juiz

Abstract

This study aims to analyze the limitations imposed by Brazilian legislation on the judge's role in the use of atypical executive measures in executions for a fixed amount. Such measures go beyond common measures to enforce the creditor's right when there is evidence of concealment of assets by the debtor. However, it is important to avoid arbitrariness and legal uncertainty. Civil Procedural Law cannot be interpreted in isolation, and must consider constitutional and procedural principles, in addition to protective infra-constitutional legislation. The study is justified by the concern with the power attributed to the judge in enforcement demands and the need to avoid arbitrariness and legal uncertainty. Inductive, historical and monographic methods are used, and the monograph will be divided into four chapters, addressing the functions of the State, execution for a certain amount, the limitations on the judge's actions and possible solutions to the problem. The work aims to contribute to the improvement of the legal system, reconciling the effectiveness of execution with the protection of individual rights and respect for constitutional principles. The present study demonstrated that it is possible to establish a balance between the power of the judge and the protection of fundamental rights in executions for a certain amount, guaranteeing a fair and effective performance of the justice system, when atypical measures are used only in a subsidiary way (ultima ratio ), through a reasoned decision, taking into account the guarantee of contradiction and the postulate of proportionality. [resumo fornecido pelo autor]