O mínimo existencial substancial de consumo: um estudo de dados dos tribunais de justiça brasileiros e análise dos acórdãos do TJPE.

Abstract

This dissertation aims to identify the concept of existential minimum from the perspective of the Over-indebtedness Law, based on the collegiate decisions of the Court of Justice of the State of Pernambuco (TJPE). The research problem is: what are the characteristics of the existential minimum of the Over-indebtedness Law, based on the discourses of the TJPE? The study stems from the gap that exists due to the absence of a clear normative criterion for the definition of the concept in the referred law, whose regulation was delegated to a later time, which occurred via Presidential Decree. Such regulation, however, faces questions as to its constitutionality and legality, currently under consideration by the Federal Supreme Court (STF) in Actions for Non-Compliance with a Fundamental Precept (ADPFs), which reinforces the importance of investigating the judicial contours attributed to the concept for the application of the concept of the existential minimum in consumer relations. To answer the research question, the work is structured in two major axes, the first referring to the literature review on the concept of existential minimum, addressing its origins in German Law and its development in the Brazilian legal system, with emphasis on its connections with the principles of human dignity and the effectiveness of fundamental rights, in addition to a jurisprudential approach. The second axis, empirical, performs a qualitative analysis of collegiate decisions of the TJPE in over-indebtedness actions, also called debt renegotiation actions, unveiling the concept of existential minimum in the context of the aforementioned judgments, which reflect the thinking of the state Court of Justice. The work follows an inductive methodological approach, aimed at identifying the criteria adopted by the judges in the concrete cases and the possible jurisprudential divergences. The analysis of the rulings reveals multiple interpretations of the concept, sometimes limiting itself to what is necessary for physical subsistence, sometimes expanding to encompass a minimum level of dignity, including fundamental rights such as housing, health and education. Elements of distinction were identified between the vital minimum and the substantial existential minimum of consumption, the latter related to the dignity of the human person and fundamental social rights. Regarding data collection, it was also observed that there was a possible low adherence of the state courts in the appropriate use of the subject and class related to the theme of over-indebtedness, and in the adherence of the TJPE. As for the analysis of the judgments, it was possible to identify that none of the cases analyzed went beyond the initial phase, and all the claims were dismissed or extinguished in the first instance due to the non-fulfillment of interpretative requirements by the magistrates. As for the grounds, the instrumental and the substantial existential minimum were identified, the latter only implicitly, either with the return of the records for the continuation of the action, or as a basis for the application of specific legislation for public servants. It is concluded that, although there are no objective criteria for defining consumption modalities, it was possible to unveil how the existential minimum has been handled by the Pernambuco Justice, contributing to the understanding and delimitation of the concept.