COGNITION IN CIVIL ENFORCEMENT AND EXCEPTION OF PRE-ENFORCEMENT
Name: PAULO VITOR FARIA DA ENCARNAÇÃO
Publication date: 07/06/2024
Examining board:
Name |
Role |
|---|---|
| FLAVIO CHEIM JORGE | Examinador Interno |
| HEITOR VITOR MENDONÇA FRALINO SICA | Examinador Externo |
| MARCELO ABELHA RODRIGUES | Examinador Interno |
| THIAGO FERREIRA SIQUEIRA | Presidente |
Summary: The dissertation aims to determine which matters the judge can consider in the execution proceedings themselves. Additionally, it addresses the institution of the exception of pre-enforcement as a means available to the debtor to activate the endo-executive cognition of the judge, with its own requirements and procedures. After presenting the main doctrinal positions on the judge's cognitive activity in enforcement during the 20th century, the study concludes that there are currently three prevailing understandings in Brazilian procedural law. In increasing order of breadth, the first posits that only the conditions of the enforcement action, the procedural requirements of enforcement, and the regularity of the enforcement measures can be known by the judge in executivis. The second adds to the previous view matters related to the legal relationship underlying the enforceable title that are of a public order nature, as the judicial body must address them ex officio. The third suggests that, in addition to the conditions of the enforceable action and the validity of the enforcement measures, all matters related to the enforceable obligation could also be known by the judge in enforcement. The dissertation aligns with the third understanding, based on two premises: in cases of non-performance, the provision of judicial protection does not end with the issuance of the condemnatory sentence, nor does the object of the process dissolve with its final and binding judgment, and the judge, in enforcing the sentence, continues to deal with the substantive legal relationship underlying the enforceable title, which can be modified or extinguished by facts subsequent to the formation of the title, and these must be known by the judge in enforcement. In the enforcement process (extrajudicial title), by definition, enforcement without condemnation, the study argues that from its outset, the judge must exercise summary cognition both on the formal factors of the title and on the obligation it represents, so that they must also know in executivis of facts that modify or extinguish it. Having established the characteristics of the judge's cognition in enforcement, the study identifies the exception of pre-enforcement as a legitimate defense tool for the debtor, suitable for making claims demonstrated by pre-constituted documentary evidence, whether about the conditions of the enforceable action, the regularity of the enforcement measures, or the enforceable obligation. The dissertation delves into the examination of the exception of pre-enforcement, starting with its emergence, terminology, and legal nature, and arriving at the requirements for its regular use, the procedure for its processing, and the effects of its judgment, with particular attention to the ability of the decision that considers the exception on its merits to be covered by the authority of res judicata.
