General clause of effectiveness and attipicity of executive measures: assumptions and limits of application

• Grant number: 17/18700-0
• Support Opportunities: Scholarships in Brazil - Scientific Initiation
• Start date: April 01, 2018
• End date: December 31, 2018
• Field of knowledge: Applied Social Sciences - Law - Public Law
• Principal Investigator: Fernando da Fonseca Gajardoni
• Grantee: Rodrigo Buck Calderari
• Host Institution: Faculdade de Direito de Ribeirão Preto (FDRP). Universidade de São Paulo (USP). Ribeirão Preto , SP, Brazil

Abstract

The extension of the executive power of the judge, introduced by the general clause included in Article 139, IV of the New Code of Civil Procedure (Law no. 13.105, of March 16, 2015), raised doubts about the limits imposed on this subject in conducting of acts that seek to guarantee the effectiveness of judicial protection. In this context, the present study seeks to find guidelines that guide the role of the State-judge in the use of so-called atypical means of execution, with emphasis on those procedures that have as purpose the payment of certain amount. At first, the work will use the technique of doctrinal research in order to establish a dialogical analysis, allowing the extraction of a model of criteria capable of guiding the application of the device. Next, the empirical method, represented in this case by the qualitative and quantitative analysis of the judgments of the Court of Justice of the State of São Paulo (TJ-SP) will be used, in order to verify how the general clause is operationalized by that court. The intention is that with the results obtained from this research it is possible to affirm or to deny a possible jurisprudential tendency of the TJ-SP in relation to the subject matter of study, besides assessing the possibility of elaborating a new model of criteria, The presuppositions and conditions already indicated by the doctrine with others that, often, only appear in the synergy of the judicial practice. (AU)