Sobre a (im)penhorabilidade do bem de família na execução trabalhista

Abstract

Whereas of uncontroversial application in the context of civil jurisdiction, the rules concerning restraint of mortgage on real estate property for familiar habitation create theoretical and judicial dissonance in the context of labor jurisdiction. Some scholars advocate its compulsory application in labor procedure law, based on the preservation of the basic right to housing and on the importance of the family to the democratic rule of law. Nevertheless, motivated by the social value of labor and by the necessity of ensuring the right to human dignity, through the means of satisfying labor credit, others defend the impossibility of the application of the rules of restraint of mortgage in the context of labor jurisdiction. Before this dilemma, the provisions of Law nº 8.009/90 should not be managed through mere legal subsumption, for we are before a collision between distinct basic rights. Therefore, the preferred technique to harmonize collisions between basic rights should be the proportionality principle, because it guarantees the attainment of equilibrium and, consequentially, justice on the concrete case.