Os limites da arbitrariedade do magistrado nas medias atípicas de execução civil

Abstract

In 2017, the Judicial Power had a collection of 80.1 million pending cases, of which more than half (53%) referred to the execution phase. Thus, the new civil procedural system, in force since 2015, with the purpose of avoiding unsuccessful satisfaction of claims pending in the judiciary, introduces alternative ways to the creditor to guarantee the amount due in the execution phase, restoring the injury suffered witch a proportionately corresponding penalty. These new ways seek to restrain the debtor from performing maneuvers to avoid paying their debts, such as, for example, dilapidating the equity or covering it on behalf of third parties. Considering the determination written in Article 139, IV, of the Code of Civil Procedure, it is clear that the judge may, by verifying that the debtor is intentionally relieving himself of his obligation, determine indirect coercive measures in order to pay the debt. Such measures may be, in the light of that article, inductive, coercive, mandatory or subrogatory, since they are necessary to ensure compliance with a court order, including actions with cash as final purpose, based on the tripod of necessity, proportionality and reasonableness; Also, since the judge has a broad power to determine measures to satisfy the obligation, it is necessary to analyze the effectiveness and legality of these new measures adopted, considerating the effects generated in both judgment debtor and the creditor, and checking the repercussion and consequences of these determination