O poder geral de efetivação do juiz na perspectiva do processo de execução civil contemporâneo : aplicabilidade de instrumentos atípicos para a garantia do direito creditício de acordo com o recente entendimento do STJ

Abstract

The controversial use of atypical executive measures in civil proceeding has provoked profound doctrinal and jurisprudential discussion about the general power of judge’s effectivity, concerning the duality existing between the effective judicial protection and the individual guarantees of the debtor executed. From this conflict, the objective is to analyze the institute in contemporary civil execution, with regard to its applicability to ensure the right of credit against to the recent jurisprudence of the Superior Court of Justice (STJ). In this intent, through the deductive method, a study is conducted about the formation of executive procedures in the Civil Procedure Code of 2015 and its constitutionals and principiologicals guidelines that should guide the judicial activity in the different modalities of obligation. In addition, it interprets the general efetivation clause inscribed in article 139, item IV, observing how the courts of the country have applied the today’s understanding of the STJ in their decisions. Thus, it is perceived that jurisdiction courts are gradually incorporating the premises of the Superior Court, which allows us to conclude that the atypical executive instruments are being used in accordance with the binding jurisprudential dictates, especially with proportionality and exceptionality assessment of the chosen atypical tool, and should be done with a casuistic and balanced examination of the process.