A promoção de efetividade ao mínimo existencial do consumidor superendividado: Critérios de cálculo e dever de renegociação

Abstract

Compromising the existential minimum hurts the dignity of the over-indebted consumer. This research aims to inquire into ways of promoting effectiveness in the minimum essential of overindebted consumers. It starts from the concept of "effectiveness" as a notion leading to the promotion of social impact, while defining the minimum essential as a set of necessary conditions for life in a society governed by the Democratic Rule of Law with dignity. The primary aim is to explore the proper criterion for calculating the minimum essential, consistent with the protection of this fundamental right. Additionally, the study investigates the possibility of compelling creditors of overindebted consumers to enter the payment plan outlined in Article 104-A of the Brasilian Consumer Protection Code (BCDC). This is done using a criterion for calculating the minimum essential that proves most effective in the given case, based on the duty to renegotiate, as a means of attributing effectiveness to the mentioned payment plan. The research begins with a theoretical exploration of the historical development of the concept of the minimum essential and the phenomenon of overindebtedness. It also examines the criteria for calculating the minimum essential used post the publication of Law nº. 14,181/2021, in the BCDC, which incorporated provisions addressing overindebtedness into the legal framework. Furthermore, the study delves into select criteria from jurisprudential calculations for comparative analysis, critical evaluation, and a survey of doctrinal approaches about the potential transition from the minimum essential to the maximum essential. The nuanced discussion revolves around the affirmation or negation of the existence of a duty to renegotiate. Critiques and observations on the criteria for calculating the minimum essential, as presented in this work, lead to the formulation of a proposal for an approach to the minimum essential within the payment plan of overindebted consumers. This proposal looks to promote effectiveness in the minimum essential of overindebted consumers. As will be seen, the research concludes that the proper criterion for calculating the minimum essential for its effective protection needs to be flexible in each specific case. It must consider the regional inflation rates of Brazil, given the marked economic differences in each region of the country. The affirmation of the duty to renegotiate by creditors in the consumer's payment plan, which may vary in terms of conduct duty and result duty, is approached cautiously, considering different pre- and post-conciliatory moments in the debt restructuring process.