Subsidiarity of article 139, IV of the CPC

Abstract

The creditor enters the judiciary with the intention of fulfilling the obligation, once it has not been paid by debtor. Until the CPC of 1973, only typical measures were allowed in the execution process. Because it us of a patrimonial nature, the debtors found ways to circumvent enforcement, so when typical measures were exhausted by the judiciary, the creditors hope of default also ended. With the advent of the CPC in 2015, the use of atypical measures is now allowed, where the magistrate applies them, in the light of article 139, IV of the Civil Procedure Code. What I intend to show in the course of this article, is that the use of atypical measures, due to their variety and freedom of the judiciary in their application, obeying basic principles, brings more efficiency in their application compared to typical measures. Although atypical execution is intended to effectively enforce the obligation, there is much discussion in the legal community about the violation of constitutional principles through its application, such as, for example, the dignity of the human person and the right to come and go. In addition to the maturation of the judiciary in relation to article 139, IV of the CPC, another topic of discussion among jurists, is the subsidiary application, or not, of the article. Thus, the objective of the present article is to carry out an analysis of the subsidiary application of atypical measures, and to demonstrate its effectiveness for the fulfillment of procedural execution. Because it is a coercive measure, it has been applied in a subsidiary manner, only when the other measures have been exhausted, which ends up being useless, because if the debtor undergoes milder sanctions, does not settle his default, using them in the alternative does not have a desired effect.