A multa coercitiva (astreintes)

• Autor(a) principal: Ramos, Jussara Regina de Almeida
• Data de Publicação: 2016
• 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/34594
• topic: CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO::DIREITO PUBLICO::DIREITO PROCESSUAL CIVIL; Tutela provisória; Tutela de urgência; Tutela de evidência; Multa coercitiva; Astreintes

This study is based on the precept of Nemo Potest Precise Cogi ad Factum, principle by which nobody can be forced to a specific act, as well as the ineffectiveness of the procedural instruments covered over the years, particularly due to a comprehensive view regarding to the perception that the indemnity clause not always could consummately repair the damages initially experienced, and reason why the courts have implemented some form of pecuniary coercion to obligations, either if they require to do, not to do or to deliver something. Accordingly, this work analyses the most relevant changes regarding the subject "interim protection and astreintes", brought by the New Code of Civil Procedure, in force since March 2016. In comparison with the repealed law, the study seeks to expose and to discuss the solutions previously proposed by the doctrine, particularly with respect to its generic and specific requirements, the differentiation of guardianships, the importance of its irreversibility, and also the magistrate's general power of injunction. Presenting distinct contradictions about the effectiveness of astreintes, how they are understood and, therefore, established, this study seeks to demonstrate, with hypothetical and real situations, the harm caused by the court's misapplication of astreintes, including the unjust enrichment often attributed to this conduct. In a comprehensive way, the analysis brings, albeit briefly, the controversies faced daily by jurists, mainly judges. In other words, the main issue presented by the study has much to do with the historical interpretation given by the coercive fine arbitration. When it is applied in an irresponsible way, it brought - and it will continuously brings - huge damage to one or both parties, whether it is pecuniary value or in certain services. This is because the astreintes will be fixed to, somehow, force the due performance of the obligations. What is going to be study are the emblematic and controversial situations, the opposition, the controversies, and the aggravated damages caused by flawed application of the coercive fine. It could be seen throughout the history of astreintes and has been adapting for the best, with the learning of systematic proceduralist addressed over the years, increasingly adjusting to new needs. As a proof of this statement, the Article 537 of the Code of Civil Procedure of 2015 that deals with the coercive fine more specifically, solving common questions from past. 9 Ultimately, after the legislative, doctrinaire, factual and hypothetical study presented in this paper, it is not possible to reach another conclusion but to agree on the relevance of the coercive fine in the Brazilian legal system