Medidas atípicas de execução civil e consequencialismo jurídico: standards hermenêuticos para aplicação do artigo 139, IV do código de processo civil

Abstract

Article 139, IV of the Civil Procedure Code (CPC) brought to the legal discussion the possibility of applying atypical measures in civil enforcement. With that, the collision between the principles that govern the executive process and between the fundamental rights of the debtor and the creditor, especially that of patrimonial responsibility and less costly in the face of the principle of effectiveness, demand that the doctrine and the Courts address the issue. theme, in order to establish guidelines for the best application of the institute. Thus, it was sought to identify what the doctrine and the courts think about the application of atypical measures and, after that, to propose hermeneutical standards so that the application of article 139, IV of the CPC is in line with the constitutional dictates. To achieve this goal, it is necessary to trace the legislative history of atypical enforcement measures in Brazilian civil procedural law in the light of the legal consequentialism introduced by Article 20 of the Law of Introduction to the Rules of Brazilian Law. Then, analyze what are the fundamental norms, rules and principles that govern the executive process. After that, it is necessary to examine cases of application of the institute by Brazilian courts, in addition to investigating the guidelines established by the Superior Court of Justice for the use of atypical measures. Then, it is salutary to explain what is legal consequentialism and what are the effects of the introduction of this doctrine in Brazilian law. Finally, it is necessary to establish propositional standards for the application and implementation of the atypical enforcement measures provided for in article 139, IV of the CPC.