Abuso de direito processual do credor instituição financeira

• Autor(a) principal: Casado, Marcio Mello
• Data de Publicação: 2011
• Tipo de documento: Tese
• Idioma: por
• Título da fonte: Biblioteca Digital de Teses e Dissertações da PUC_SP
• Texto Completo: https://tede2.pucsp.br/handle/handle/5542
• topic: Abuso de direito processual; Litigância de má-fé; Instituição financeira; Efetividade; Boa-fé; Má-fé; Lealdade processual; Abuse of procedural right; Bad faith litigation; Financial institution; Effectiveness; Good faith; Bad faith; Procedural loyalty; CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO

Over the last sixteen years, Brazil has gone through important legislative modifications, which have been motivated by the need, in the economical field, of reducing the interests rate and the banking spread. The changes that have occurred, not only in civil procedure, were encouraged by the financial institutions and by the Central Bank of Brazil, through a series of annual reports. The model in which the modifications were based had as its foundation the paradigm that the lack of effectiveness in the civil procedure was the result of a system that granted many guarantees to the creditor, which would make it difficult for the credits to be obtained in court. In the field of substantial law, the legislation would obstruct a series of contractual practices carried out by the financial institutions, once abusive. The Judicial System, when interpreting these rules in force, would have an inadequate position, contrary to the interests of the financial institutions. The system would suffer from a moral risk. The legislation has been modified. Licit situations have become illicit. New forms of enforcement and its instruments have been created or improved. Although, the system still suffers from the sluggishness for parties to obtain their credits in court. The interests rate and the banking spread remain high. The diagnosis was mistaken. The obtaining of the credits in court was slow not because the Judiciary System was being lenient with de debtors, or because the legislation was retrograde or excessively protective. The abuse of procedural right by the financial institutions, with the sole aim of enforcing the contractual illegalities and to force the performance of undue installments is the cause for the delay on the closure of the law suits. The financial institutions, assumingly acting in bad faith, insist on using excessive procedural tools, in order to try to make illegality prevail. The process ends up operating not as a means of enforcing justice, but as a way to blackmail and to discourage the debtor of proceeding in the defense of his legitimate rights. However, one of the damaged parties by the abuse of procedural right is the creditor himself, as far as, with the reaction of the good faith debtor, the process tends to procrastinate, not because the debtor is not right, the opposite: the debtor is right and the creditor can t cope with this fact. Notwithstanding, the abuse of procedural right can only succeed when there is an active or omissible collaboration of the Judicial System. Jurisdiction becomes a means of realization of the abuse, instead of being the least likely place for it to be found in. At last, all the parties involved lose with the abuse of procedural right: the debtor, once, in some moment, could give up, even having the law on his side; the creditor, because it will take a long time for him to obtain his credit; the State, once the Judicial System must administrate a litigation which could have been solved way before. Also, the collectivity, under a diffuse point of view. The abuse of procedural right needs treatment, and this could be preventive, corrective or compensating