A inconstitucionalidade das medidas executivas atípicas do art. 139, IV, do novo código de processo civil, em especial a suspensão da CNH do executado

Abstract

The present study deals with the possibility of the magistrate, in a legal process, to use the atypical executive measures provided for in art. 139, IV, of the 2015 CPC. More specifically, we will study the possibility of the judge, in the enforcement process, ordering the suspension of the executed National Driver's License (CNH) as a means of coercing him to comply with the due obligation. What is intended to be demonstrated is the negative impacts that this measure brings to the executives, noting that the suspension to the right to drive hurts constitutionally guaranteed precepts and principles, such as the right to free movement, and also the right to work. For this reason, we will observe how the doctrine and jurisprudence on the subject is taking place, considering that, although the atypical executive measures were foreseen in the CPC of 1973, this institute proved to be much more present during the current Code, and it is happening. , since its entry into force, broad and vast doctrinal debates, as well as conflicting decisions with the Brazilian legal system. Thus, we will see that there is a huge doctrinal and jurisprudential divergence (including in the Superior Court of Justice) on the studied subject. However, a considerable doctrinal portion has considered the CNH suspension of the executed as a disproportionate measure, considering the institute as a merely sanctioning measure, violating the principle of patrimoniality of execution and violating the fundamental rights of all debtors. The conclusion, after observing the various points on the subject, is that atypical executive measures are important and often effective. However, the suspension of the CNH of the executed, as an atypical executive measure, is considered unconstitutional, since it reaches the fullness of their right to free movement, and also the right to work, in the case of persons who use the right to drive. to make a living.