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New Legal Position Redefines Criteria and Guides the Proper Use of Unusual Execution Measures
The unusual execution measures have gained new analysis following a recent understanding of the 2nd Section of the Superior Court of Justice. Thus, experts affirm that tools such as card blocking and passport seizure should not depend on signs of assets, although they require careful, proportional and grounded application. In this way, the debate intensifies because it involves the pursuit of greater effectiveness with less burden.
Subsidiary Adoption and Strengthened Foundation
The collegiate defined that these measures need to be subsidiary, as they should only be used when typical means do not produce results. Furthermore, the decision must be substantiated, as the judge needs to demonstrate how the measure contributes to compliance. This interpretation seeks to reinforce balance and legal security in the process.
Central Points of the STJ’s Understanding
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- The measures need to be subsidiary and used after unsuccessful attempts with traditional means.
- The foundation must explain the real utility of the measure in the specific case.
- Proportionality must guide each decision to avoid excesses.
- The analysis must consider the behavior of the debtor and individual circumstances.
Discussion on the Existence or Absence of Assets
Experts emphasize that the main correctness of the STJ was to eliminate the requirement for signs of assets to allow the adoption of measures. Furthermore, they state that in many cases, there are no elements that confirm or deny the presence of assets, and yet, coercion can be useful.
The jurist José Miguel Garcia Medina explains that the measure needs to be appropriate to the reality of the case. He emphasizes that it makes no sense to adopt passport seizure when the debtor does not travel abroad, as the measure would not yield results.
Concealment of Assets and Conduct of the Debtor
The lawyer Rodrigo Forlani Lopes points out that the requirement for proof of concealment would be unfeasible. This occurs because if there were minimal proof, it would already be possible to use typical means, such as seizure. Thus, the central criterion becomes the concrete necessity of the measure, always with proportionality.
He adds that it is up to the judge to analyze the behavior of the debtor, especially when there are signs of attempts to frustrate the execution. Therefore, the effectiveness of the measure cannot be presumed, as it requires justification demonstrating how it can stimulate compliance with the obligation.
Case Law and Appropriate Application of the Measures
The lawyer Regina Céli Martins states that the aim of the STJ was to prevent the use of unusual measures against those who have become legally insolvent. Thus, the choice of the measure needs to consider the context and the concrete utility.
She emphasizes that requiring proof of assets would make the thesis practically unfeasible, as the creditor, upon identifying assets, would naturally seek typical measures, rather than coercive alternatives.
Theses That Guide Judicial Action
The ministers defined that the measures should last only as long as necessary to overcome the debtor’s resistance, always observing proportionality. Furthermore, the Supreme Federal Court has already recognized that these mechanisms strengthen access to justice and increase the efficiency of civil execution.
Theses Applicable to Unusual Measures
- The measures need to balance effectiveness and lower burden.
- The application should be prioritarily subsidiary.
- The foundation needs to be appropriate to the specificities of each case.
- Contradictory, proportionality, and reasonableness need to be respected, including regarding the duration of validity.
In light of this scenario, experts assess that the use of these measures demands technical rigor, caution, and solid justification, as the real impact depends on the precise reading of each concrete case and isn’t exactly this careful analysis that should guide the future of civil execution?
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