A impenhorabilidade do bem de família de alto valor e o Direito Fundamental à execução efetiva

• Autor(a) principal: Andrade, Guilherme Rodrigues de
• Data de Publicação: 2023
• Outros Autores: [e-mail]
• Tipo de documento: Dissertação
• Idioma: por
• Título da fonte: Biblioteca Digital de Teses e Dissertações da UERJ
• Texto Completo: http://www.bdtd.uerj.br/handle/1/19491
• topic: Unseizability; High value family property; Fundamental right; Effective execution; Impenhorabilidade; Bem de família de alto valor; Direito fundamental; Execução efetiva; CIENCIAS SOCIAIS APLICADAS::DIREITO::DIREITOS ESPECIAIS

Law 8.009/1990 ensures the unseizability of family property regardless of its value, even protecting debtors residing in luxurious or high-value properties, overflowing with the main objective of the rules of unseizability, which is a guarantee of the dignity of the human person, and violating the Fundamental Right to effective execution. The objective of the present work is to analyze the compatibility of the rules of unseizability, especially with regard to the unseizability of luxurious or high-value family property, in view of the Fundamental Right to effective execution. For this, the study will demonstrate, initially, that the Fundamental Right to the effective execution is a corollary of the Principle of the Inalienability of the Jurisdiction and the Right of Access to Justice, foreseen in the article 5º, XXXV, of the Constitution, which assures not only the right to provoke the Judiciary, but also the right of the citizen to obtain, in material terms, all that is effectively due to him. Despite being a constitutional right, during a judicial execution, routinely, the Fundamental Right to effective execution enters into a collision course with the Principle of the dignity of the human person, especially when analyzing the rules of unseizability. Therefore, in the second moment, the work will address the fundamentals of unseizability of assets as a debtor protection technique, also analyzing the unseizability expressly provided for in the CPC. Then, the study will deepen the knowledge about the unseizability of the family property, exposing all the differentiation between the voluntary or conventional family property and the legal family property, as well as the hypotheses, expressly provided for by law, in which it is admitted the pledge of the property. In the last stage of the work, it will be seen that, despite the national legislation does not foresee a value limit to the unseizability of the family property, the Brazilian doctrine defends that, in an eventual conflict between the Fundamental Right to the effective execution and the Principle of dignity of the human person, the judge must balance the interests, in the specific case, allowing the attachment of the property to a high-value family property, if it is proven that, after the disposal of the property and payment to the creditor, there will still be enough balance left to that the debtor acquires another dignified dwelling. At the end of the work, it will be proven that the generic and abstract unseizability of the family property is unconstitutional, and its relativization must be admitted in the face of the Fundamental Right to effective execution, when it remains proven that the dignity of the human person of the debtor will not be degraded, in a similar way as the STJ has been admitting the relativization of wage unseizability and the attachment of a portion of the property in case of possibility of dismemberment.