O direito fundamental à tutela jurisdicional executiva efetiva e os meios executivos atípicos nas execuções de pagar quantia

Abstract

The purpose of this paper is to analyze the problem of the ineffectiveness of the civil execution, starting from the constitutional premise of the effectiveness of the jurisdiction and the fundamental right of the creditor to executive protection, based on the due legal process and on the concept of execution, as being the procedural activity intended to transform the right constituted into practical reality. It is necessary to implement techniques capable of promoting modifications in the procedural scope, with the purpose of compelling the executed party to satisfy the execution or at least collaborate with the executive activities. This is because there are many cases submitted to the Judiciary that the executive process does not achieve the expected practical result. The 2015 Code of Civil Procedure expressly provides that the judge will direct the process, being in charge of determining all the necessary measures to ensure compliance with the court order, thus allowing the application of atypical executive measures, including pecuniary executions. The problem, to which this research intends to contribute, can be summarized as follows: are the atypical coercive enforcement methods in pecuniary executions having the expected effects, i.e., is the fundamental right to enforcement being satisfied? Article 139, IV, of the Code of Civil Procedure of 2015, as a general clause, needs parameters, which have been (and are being) outlined by the doctrine and by the Superior Court of Justice. To do so, it was used the deductive method, supported by the technique of bibliographic research from reading analytically and critically doctrines, articles and scientific papers, and had, also, as instruments of data collection the legislation, the reports from 2017 to 2020 of the National Council of Justice and the recent case law of the Superior Court of Justice. Moreover, it will also be presented a cut with the research of jurisprudence in the Court of Justice of the State of Mato Grosso, aiming to analyze the effectiveness of atypical coercive measures in the processes of origin. Thus, verified the insufficiency of the system in the execution of sum certain, it is intended, through atypical executive measures, to achieve the fundamental right of the creditor to the satisfaction of the credit and to provide the full and integral executive tutelage.