A influência do pacto de São José da Costa Rica no que tange a prisão civil do depositário infiel no instituto da alienação fiduciária no direito brasileiro

Abstract

With the development and evolution of society, the need to expand human rights was observed in the legal environment. For this advance, there is the development of international treaties aimed at these improvements at the international level, but which have a strong role in the domestic law of countries. In Brazil, specifically, one of these treaties had an influence, even, on the collection means admitted in the fiduciary sale, an institute that is used in a wide range in the economic market of movable and real estate. Thus, the present work aims to analyze how the interference of this international treaty, namely the San José Pact of Costa Rica, actually occurred, in one of the main means used to provoke the party against the fulfillment of its obligation assumed in the fiduciary business, on the tangent of the infidel depositary's civil prison. It was found that the change in the understanding of the Supreme Federal Court on this issue, due to the prevalence of human rights before the Federal Constitution, brought about the prohibition of civil imprisonment of the unfaithful depositary, and it is no longer possible to use this means of collection as form of coercion of the fiduciary debtor to fulfill the obligation in the fiduciary alienation contracts, and it is necessary to seek other means of collection, such as, for example, the enforcement process (sic).