A Fazenda Pública em juízo: da atipicidade dos meios executivos à teoria da reserva do possível.

Abstract

A considerable lapse of time for adjudication can affect both the legal certainty and the effectiveness of a decision. An example of a dilemma that is posed in this work is how to give effectiveness to decisions that impose obligations to public entities. The legal system needs swift and effective instruments and there are some coercive and supportive measures set out in art. 536 of CPC/15 that are presented as enforceable means for a court decision to be fulfilled. Such measures: imposition of a fine, search and seizure, removal of people and things, destruction of works and impediment of harmful activity, are an exemplary role, and the magistrate may use other measures to achieve the practical result of a court order. These other measures that are not listed in the article itself have a broad content and, for this reason, most of the doctrine and jurisprudence defends their application in a subsidiary way, that is, in cases where the typical measures are not complied with by the executor, noting in all situations, both the adversarial principle, in particular, and other constitutional principles, such as: separation of powers; dignity of human person; proportionality; lower cost; specificity. Such most discussed implicit measures and which are part of the general power of conduct of the judge provided for in articles 772 and 773 of the CPC, are: the seizure and blocking of public funds, although there are controversies about the applicability of these measures, since Both the rights of the creditor and the rights of the debtor must be protected. The work will investigate what are the possible solutions to the proposed problem without losing sight of the principle of reserve of the possible.