A concretização da impenhorabilidade à luz do Código de Processo Civil português

• Autor(a) principal: Estopa, Sofia
• Data de Publicação: 2023
• Tipo de documento: Dissertação
• Idioma: por
• Título da fonte: Repositório Científico de Acesso Aberto de Portugal (Repositórios Cientìficos)
• Texto Completo: http://hdl.handle.net/10362/159457
• topic: Penhora; Impenhorabilidade; Direito de crédito; Bens impenhoráveis; Proporcionalidade; Adequação; Dignidade da pessoa humana; Attachment; Unseizability; Credit rights; Unseizable assets; Proportionality; Adequacy; Human dignity; Direito

As pointed out by several authors, attachment has a dual function: on the one hand, in preparation for the future act of expropriation, it determines, individualizes, specifies, isolates and seizes the assets that are intended for the purposes of execution; on the other hand, it aims to prevent these assets from being hidden or misappropriated to the detriment of the judgment creditor and any creditor claimants. Nevertheless, by constitutional imposition, and as a protection of certain economic and social frailties, certain assets are subtracted from the general principle of the guarantee of obligations. In other words, the principle of patrimoniality – despite its legal relevance – is not absolute, which is why the Portuguese Civil Procedure Code establishes a system of unseizability – whether total, relative or partial. In this sense, although it is not possible to forget the right to satisfaction of the enforced credit, as the judicial practice corresponds to much more than the literal literalness of the law and aware that the Law must find its practical application in a fair and equitable solution, it is effectively necessary to safeguard the rights and guarantees of the debtor that is executed in the enforcement proceedings. In this way, given that most assets are subject to subsequent satisfaction of the credit right being enforced, it must be recognized that there are situations in which the attachment appears to be excessive or disproportionate, threatening the right to the condign subsistence of the debtor, thus raising a number of humanitarian questions of public, social and economic nature. In fact, the dignity of the human person has been recognized as an inalienable right of each and every individual, as a free, autonomous and socially responsible being, and has been considered a basic and fundamental value, guiding and grounding the entire legal system. It happens, then, that, materializing as the effective understanding of the Law in practice, it is important to understand the ratio and the line of conception of jurisprudential decisions, in order to contribute to the progress and consolidation of jurisdictional activity.