THE LIMITS OF ATYPICAL MEASURES WITHIN THE SCOPE OF CPC 2015 AND THE REITERATED DECISIONS OF HIGHER COURTS TO EFFECTIVE THE EFFICIENCY OF EXECUTIVE GUARDIANSHIP

Abstract

Atypical execution measures are legal precepts that entrust the magistrate to take measures in last cases, with regard to the fulfillment of a certain credit based on a legal relationship where there is the existence of two elements, creditor and debtor and from that relationship arises default and after exhausting all forms and agreements of negotiation, renegotiation and with its failure, hence the intervention of the judge using the investiture of his function based on art. 139, IV of the CPC civil procedure code. However, this measure has generated great controversy in the judiciary, because once the magistrate takes such a measure in a case in relation to the defaulting debtor, such as withholding a credit card, passport, or driver's license, for some scholars, jurists etc. such a measure vehemently violates the right to come from that person who had the retention of such documents and credit, the issue discussed here on the subject is that such a measure has been taken by virtue of forcing the payment of that credit, as well as the basis of Now, if the debtor doesn't have the money to pay off that debt, he also doesn't have the money to spend on travel, pay off his credit card or put fuel in his vehicle. The supreme federal court, STF, has been judging, discussing and appreciating repeated understandings and decisions from higher courts on the subject through the direct action of unconstitutionality ADI 5941, proposed by the workers' parties (PT), and so until this premise is judged by the STF, this topic has generated a lot of controversy within the judiciary, due to this divergence and clash of different understandings.