Requisitos para aplicação das Medidas Atípicas no Processo de Execução

Abstract

The New Civil Procedure Code of 2015 established, within the chapter on the duties and powers of the judge, the possibility of applying inductive, coercive, mandatory or subrogation measures necessary to ensure compliance with a court order, including in actions aimed at monetary payments (Article 139, item IV, of the Code of Civil Procedure), called by proceduralists as atypical measures. With the entry into effect of the general clause of atypicality, the need arose to discuss parameters and requirements of application that ensure the effectiveness of the process, but that do not abandon the rights and guarantees of the debtor. In this sense, this article aims to suggest application requirements, especially in the enforcement proceeding, so that it is possible to guarantee a balance between the opposing interests in the enforcement proceeding: effectiveness of judicial protection versus the debtor's rights and guarantees. It is not intended to exhaust the subject or propose regulated requirements for the application of these mechanisms, even because it is in their own legal nature the atypicality and malleability to adapt them to the concrete case. Furthermore, it is proposed, therefore, that the application be guided by the principle of proportionality and that the merely punitive measures be avoided, maintaining the coercive purpose and the ability to compel the executed to voluntary payment.