Among the new ideas brought by the CCP / 15, one of the most controversial innovations – both for the doctrine and in court – refers to the rule of item IV in art. 139, which, within the topic of the powers and duties of the judges, was written to determine “inductive and coercive measures, as well as an order or subrogation to ensure the fulfillment of a court order” – and this “includes the lawsuits for pecuniary compensation”. There is, then, the discussion of how such measures could be applied to the obligation to pay, and if in the case of the satisfaction of a debt by the creditor, it would be possible to establish rules such as the suspension of the debtor’s driver’s license, the seizure of his/her passport and the cancellation of his/her credit cards.
The reader hereof should be readily warned: this topic challenges in-depth study and reflection, which are not compatible with the limits of this article. What follows is intended to be nothing else but a clue of what is meant to be some of the relevant points in this analysis.
The classical concept of execution, understood as an action of secondary sanction, was based on the idea of subrogation: it consists in the practice of material acts to invade the sphere of the debtor’s assets, in order to, against the will of the debtor, satisfy the creditor. In the case of the amount, this is done by means of acts whose result is the expropriation of the debtor’s attachable assets. Still in the classical concept, using coercive means over the willingness of the debtor with the purpose of compelling him/her to pay off the debt – if not spontaneously, at least voluntarily – was regarded as an “improper” execution or, at least, “indirect”.
Concepts aside, the fact is that in order to pay the creditor the state may follow two ways: one is to take over the debtor’s place, whose wish will become irrelevant (and that is why one should not talk about “sale”, but about seizure); and another way is to compel the debtor to pay.
The use of actions that fall under the latter is far from being something new in the Brazilian positive law. Not to mention the “support measures” set forth in paragraph 5 of art. 461 of the CCP / 73 (which corresponds to articles 297 and 536, § 1 of the current law) regarding the duty to do something or refrain from doing something and the transfer of the possession, even for the pecuniary obligations, the coercive or inductive measure was already – and is still – employed. This is true in the case of alimony in which there is the threat of imprisonment although relatively limited. Even as a general rule, the ten percent (10%) fine, which was set forth in art. 475-J of the CCP / 73 and repeated in art. 523, § 1 of the CCP / 15, still has that same function as it tries to encourage the debtor to pay. Moreover, even when the CCP / 73 was in force, we were already in favor of the possibility of imposing a daily fine in an execution of an amount concerning the instrumental and preliminary proceedings to expropriation, which could depend on the will of the debtor’ (see our article “Efetivação da tutela antecipada: uma nova execução civil?” (“Enforcement of the interlocutory relief: a new civil execution?”), in the collective work: “Processo e constituição: estudos em homenagem a José Carlos Barbosa Moreira” (“Proceedings and Constitution: studies in honor of José Carlos Barbosa Moreira”), coordinators Luiz Fux, Nelson Nery Jr. and Teresa Arruda Alvim Wambier, São Paulo: Revista dos Tribunais, 2006 , Pp. 330/339). Moreover, the electronic attachment of financial assets, considering the fact that it immobilizes the debtor’s net worth with remarkable efficacy at least for a certain time, in the end, and in a pragmatic way, also has the potential to serve as an incentive to payment – although sometimes by using unlawful means as a result of the seizure of amounts which are higher than those sought by the creditor himself/herself.
In this context, the points that follow seem relevant to me, however, with the reminder about the limits of this article.
Firstly, the question is about the possibility of employing atypical (in this case, indirect) executive means, that is to say, not expressly provided by law, but determined according to a “general power” attributed to the judge. By the time of § 5 of art. 461 of the CCP / 73, the possibility that the above situation could happen had already been accepted by the doctrine; and, anyway, there is no relevant discussion about the constitutionality of the expression “such as” found in that text or of the phrase “among other measures” in the current law (article 536, § 1). Thus, atypicality is not an obstacle by itself, with the important observations that follow.
Secondly, the point is whether atypical coercive or inductive measures could only be determined in a subsidiary way. Here it is necessary to be careful about concepts: one thing is the distinction between direct and indirect executive measures (these are coercive or inductive); another thing is the typicality or atypicality of the measures. That is to say, before talking about typical or atypical measures, it is important to know if the use of the indirect procedure (in which the executive acts do not fall exactly on the attachable assets) presupposes that the direct way had been previously used up (which, instead, makes use of the attachment, valuation and expropriation of assets).
Although it is possible to notice a trend to recognize this subsidiary side, an appropriate reflection on the topic must be made. It was not often accepted and it is not accepted even today when the issue is alimony, for example. Although with restricted time limits (see the precedent 309 of the Brazilian Supreme Court), the arrest warrant is not conditional upon the fact that the maintenance creditor has tried to attach the debtor’s assets beforehand. As a matter of fact, the assertion above also applies to the duty to do something or refrain from doing something and the transfer of the possession. And this happens, at least in logical terms, due to a fundamental reason: voluntary payment – even if performed by means of induction (that is, indirectly) – is far more advantageous for the state because it will not need to undertake the long and costly course of the proceedings for subrogation, and for the creditor, who can likewise obtain satisfaction in a shorter and less expensive way. If the use of indirect means is admittedly more useful to the state and to the creditor, it is reasonable to ask: what logical reason would justify reaching the most efficient after the most expensive and the less efficient measures have been worn out? In this respect, it does not seem lawful to consider a right of the debtor to see his assets expropriated, a right which will exclude the possibility of the debtor not being compelled to sell it on his/her own account and, with the funds, paying off his/her debt.
It is true that in the crime of contempt, when there is the disobedience of a judicial order towards the duties to do something or refrain from doing something, it can only be considered in a subsidiary side (see our “A tutela penal do processo civil no CPC 2015: breves considerações” (“Criminal protection in the related civil proceedings in the CCP 2015: brief considerations”) in Estudos em homenagem a Ivette Senise Ferreira (Studies in honor of Ivette Senise Ferreira), org. Renato de Mello Jorge Silveira, São Paulo: Liberas, 2015). However, the situation above is a way of criminal protection in the related civil proceedings. Therefore, this subsidiary side is not exactly established by a fundamental of the proceedings, but by material (criminal) law.
Perhaps, from the subsidiary application of those indirect measures, it is possible to consider (and this may be the correct idea) that they – in any case – must be lawful and reasonable, and they should be understood as being necessary, adequate, and proportionate in a strict sense. However, necessity and adequacy are valid for both direct and indirect measures, and, as shown above, as far as utility (which is the result of the other two measures) is concerned, the coercive or the inductive measure is more advantageous both for the state and for the creditor. It remains the idea of proportionality: it could be said that, if there were no obstacles to the subrogation, it would be disproportionate for the executive to act on the legal assets other than the ones the creditor owes. Or, in other words, by confronting, on the one hand, the burden imposed on the state and on the creditor, and that arises from the application of the direct measure (already mentioned above: attachment, valuation and expropriation of assets), and, on the other hand, the burden imposed on the debtor, which arises from the indirect measure, a balanced result could thus be reached for the specific case.