O poder geral de efetivação das decisões judiciais: uma análise crítica e constitucional do artigo 139, inciso IV, do código de processo civil

Abstract

The general power of effectiveness of judicial decision, instituted by the article 139, subsection IV, from the Code of Civil Procedure, enshrines the atypicality of executive measures, so that the judge, faced with the ineffectiveness of the typical means may apply inductive, coercive, mandatory or subrogatory measures not typified by law. Occurs that, the scope of possibilities by virtue of the application of such a norm implies, in the light of the General Theory of the Constitutional Process, mainly from the point of view of Luiz Guilherme Marinoni, Sérgio Cruz Arenhart and Daniel Mitidiero, and the doctrine and theory of Fundamental Rights by Robert Alexy, the establishment of limits for the jurisdictional action, in order to guarantee the effectiveness and proportionality of its guardianship. Having said that, from the critical, constitutional and empirical analysis of art. 139, IV, from the CCP, the magistrate must observe and consider relevant criteria to its proper application, thus establishing the unavailable limits of the measures allowed under violation penalty of individual rights in order to obtain the satisfaction of pecuniary claims, as occurred in the decision of the case number 4001386-13.2013.8.26.0011 of the TJSP, which ordered the suspension of the convicted’s National Driver's License, the cancellation of his credit cards and the seizure of his passport until the discharge of the debit. Such a decision was revoked due to the impetration of Habeas Corpus. It is emphasized that the ideal is to embark on the modular logic, that is, the search for suitable solutions to the case in counterpart to generic solutions, of alleged abstract and universal adequacy, so that the judge's action before the application of article 139 is compelled by the active participation of the parties, not only with the adversary, but also with their autonomy for the juridical proceedings; as well as by the Constitution, law, jurisprudence, the procedural legal dogma and the Theory of Law, controllable in the broad duty of judicial justification, establishing the unavailable limits of atypical measures.