Superendividamento do consumidor e o direito ao mínimo existencial como forma de preservação da dignidade da pessoa humana

Abstract

ABSTRACT This dissertation deals with overindebtedness, in which we will permeate our research as to the nuances and peculiarities that will reveal, from the theoretical study, based on bibliographic research to questions alluding to the respective topic. Thus, as to the forms of prevention, treatment and among the particularities that govern the respective law, we will address points concerning the preservation of the existential minimum. I agree that the law brings in its bust actions that aim beyond consumer protection, treatment and prevention measures, so that over-indebtedness is not installed. To the one who is on the margins of consumption, precisely because he is in the condition of over-indebted, to enable him to reintegrate into the consumer market, through the possibility of the plan of re-facturation and block negotiation of his debts. In addition, by its article 1, the law amends article 6 of the Consumer Protection Code (CDC) to include in paragraph XII the basic right of the consumer. In the debt repayment plan, provided in article 104 of the CDC, there is the legal support aimed at ensuring the existential minimum and the dignity of the human person. As our legislation is recent, on the issue in reference, there is no doubt that the challenges will be numerous, in order to safeguard and protect the figure of the overindebted debtor. However, despite the guarantee regarding the existential minimum, through Decree 11.150/2022, it shows us that such a regulation distracts from the provision of Law 14.181/2021, since it is intrinsically linked to the preservation of the existencial minimum. The decree does not contain within the plan established in the law of overindebtedness, based on Article 6th, subparagraph XII and 104-A of the CDC, which justly provides that such an analysis must be made, on the basis of the socio-economic reality of each person overdebted. This is completely adverse to the regulation of Decree 11.150/2022, which leads us to the notorious perception of unconstitutionality regarding it. This is what we will focus on in our research. Previously, from Decree 11.150/2022 the interpretation as to the existential minimum was restricted to the judge, from the principles, which undoubtedly brought a gap and opportunized divergent interpretations that do not meet within the reliable aspects of what advocates and guides the Law of Super-Debt in its perspective. As for the resumption of consumption, from the implementation of this consumer who is in this extremely conflicting and particularized situation. Therefore, we have seen through this research that we have a greater understanding and build an understanding of how much the limit that could be compromised in the consumer's income, and what would be the maximum limit of the respective commitment so that the existential minimum can be guaranteed, so that our research problem will be precisely the identification of what this existential minimal would be, starting from the premise of the unconstitutionality of Decree 11.150/2022. Regarding the theoretical contributions, which we will paut ourselves to the collaboration to the study raised for the elucidation of the problem, which will be permeated by Claudia Lima Marques, Ricardo Lobo Torres, among so many others as relevant as the others cited, who will be indispensable sources to the construction of our work, and so that we have a framework of elements to find a substrate for the defense of the existential minimum. Thus demonstrating the limit to the maximum commitment of consumer income at the level that aims to preserve the existential minimum, as well as the dignity of the human person for all cases that are characterized as over-indebted hypervulnerable consumers.