(In)aplicabilidade da teoria do adimplemento substancial em sede de execução alimentícia para afastamento da prisão civil: análise do HC 439.973/MG e do RHC 104.119/RJ, do Superior Tribunal de Justiça

• Autor(a) principal: Felipe, Nícolas Elias
• Data de Publicação: 2020
• Tipo de documento: Trabalho de conclusão de curso
• Idioma: por
• Título da fonte: Repositório Universitário da Ânima (RUNA)
• Texto Completo: https://repositorio.animaeducacao.com.br/handle/ANIMA/5665
• topic: Obrigações; Adimplemento e inadimplemento; Alimentos; Execução; Prisão por dívida

This paper aims to analyze the legal basis adopted by the Superior Court of Justice in the judgment of Habeas Corpus n. 439,973-MG and the Appeal in Habeas Corpus n. 104.119-RJ to rule out, or not, the application of the theory of substantial default in the area of execution of maintenance in order to repel the civil imprisonment of the defaulting debtor. As for the level, it is classified as exploratory, seeking to incorporate greater familiarity with the proposed theme. As for the approach, it is classified as qualitative, based on the analysis of doctrinal and jurisprudential positions. As for the data collection procedure, finally, it is classified as bibliographic and documentary, based on the study of laws, articles, doctrines and jurisprudence. Through this study, it was found that the Superior Court of Justice rules out the applicability of the theory of substantial performance in the case of maintenance obligation, based on the unavailability of the right to aliment, on the restriction of application of the principles of private law as a whole to the right of family in view of the specificities that this branch protects, as well as in the jurisprudence of the Court itself that does not admit partial payment as a way to prevent indirect execution by the prison rite. Finally, it is concluded that the principles of good faith and social function, which justify the theory of substantial performance in Brazilian law, do not always prevail and, consequently, end up perishing in view of the cogent nature of some rights, especially in legal relations of parental stamp.