Da execução das 'astreintes' fixadas em antecipação de tutela

• Autor(a) principal: Frota, José Luís Dias Ribeiro da Rocha
• Data de Publicação: 2012
• Tipo de documento: Trabalho de conclusão de curso
• Idioma: por
• Título da fonte: Biblioteca Digital de Teses e Dissertações da PUC_SP
• Texto Completo: https://repositorio.pucsp.br/jspui/handle/handle/29926
• topic: CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO::DIREITO PUBLICO::DIREITO PROCESSUAL CIVIL; Astreintes; Multas

The implementation of procedural effectiveness relegated to the obligations of acting and abstaining is accomplished by creating tools that allow not only the citizen's access to justice, but also ways of seeking rapid and specific compliance of obligations, according to the interpretation of subsection XXXV of Article 5 from the Federal Constitution of Brazil. The reform of the Code of Civil Procedure of 1994 was important for the effectiveness of these obligations, enabling, through Article 461, § 3 and § 4 of this statute, the anticipation of the practical effects of the decision that applies to the debtor, an order that predicts the injunction or restraining and induce him to immediate compliance, by imposing a daily fine - the astreintes, a French expression used in our doctrine and jurisprudence. The astreintes, of coercive nature and incidental to the principal obligation, should represent the debtor imminent disadvantage, especially in emergency judicial protection established in advance to the delivery of the judgment and its final disposal. However, the legislator did not pronounce about the procedural time for its liability when given in request of urgent preliminary rulings; the doctrine and jurisprudence differ in three ways: (i) the one that denies the possibility of execution before the award is made, (ii) the one that admits the provisional execution of periodic fine, becoming permanent after the final judgment of sentence that recognizes the right which resulted in a fine and (iii) the doctrine that considers the definitive execution of penalty, regardless the outcome of the trial; this monograph will address these aspects