Expropriação executiva

AUTOR(ES)
DATA DE PUBLICAÇÃO

2010

RESUMO

This doctoral thesis aims to analyze the institute of forced expropriation, its characteristics and its fundamental importance in the foreclosure concerning satisfaction of court guardianship of pecuniary contents. The forced expropriation is an executive technique, based on subrogation, focused on the satisfaction of financial court protections. In the civil procedure discipline, the forced expropriation is a unequivocal act emanated from the power of jurisdiction, being an institute of public nature. Through it, imperatively and without the assistance of the will of the dispossessed, jurisdiction affects and transfers ownership and possession of property belonging to the debtor (or belonging the entities responsible for the foreclosure) and delivers it to the creditor or to a third party that intend to acquire this property. After analyzing the concept of enforcement, its techniques and the executive measures provided by our legislation, this study makes a comparison between the procedural executive activities of subrogation and coercion. Differently from the remaining opinion of several authors, the foreclosure should not be defined as a practical activity, designed to apply a legal sanction, without or against the will of the debtor, handling to the creditor, on a factual background, the legal interest which a civil conviction or any other document valid to commence an execution process awarded him. Embracing this order of ideas would be equivalent to deny an undeniable truth: that many executive activities are carried out through cooperation, even encouraged, by the debtor. The thesis also focuses, on its first part, the principle of financial liability and the dichotomy between debt and responsibility (Schuld und Haftung), also meditating about the state of submission of debtor s assets (or entities responsible for paying the debt) for the attachment pursued to satisfy legal obligations in the enforcement. After discuss the background and the circumstances where the study of the executive expropriation is developed, this thesis seeks to examine, with appropriate depth, the ways in which this technique is applied in the context of pecuniary foreclosures. Regarding that matter, this thesis decompose the executive measures of adjudication of assets, the private alienation of property, the purchase by auction and judicial usufruct, pointing out that, regarding this last issue, in the authors belief, that it is not, itself, a actual method to expropriate the attached property if there is an expropriation, it relates only to the incomes and earnings of the pledged property, and not directly on the assets attached. In its final part, this study analyzes the institute of expropriation and its role in many other civil procedures, among them the actions and foreclosure regarding labor law and social security contributions, bankruptcy procedures, class actions, foreclosure against insolvent debtors (insolvency status) and the criticized so-called extrajudicial foreclosure, regulated by the unconstitutional Brazilian Legislative Decree No 70/66. And, in its last chapter, this thesis intents to analyze the statement of defense in collection suit filed after the attachment, whose purpose is to invalidate the act of expropriation, due to procedural nullities of form or substance

ASSUNTO(S)

arrematação purchase by auction expropriation expropriação adjudication of assets direito private alienation of property execucoes (direito) -- brasil processo civil -- brasil foreclosure adjudicacao -- brasil embargos (processo civil) -- brasil alienação por iniciativa particular judicial usufruct usufruto judicial statement of defense in collection suit

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