Execução extrajudicial por cooperação judiciária interinstitucional

Abstract

For many decades, there has been a marked crisis in the effectiveness of executive judicial protection, marked by the precariousness of its results. It is a fact that enforcement is not going well. It is also well known that the problems are multifaceted and complex, involving not only legal factors, but also social, political and economic factors, which are difficult to resolve. Although procedural techniques alone are not capable of overcoming these obstacles, they play an essential role in defining the direction of the administration of civil justice. In most Brazilian enforcement proceedings, the model of concentrating the practice of executive acts in the state jurisdictional body is still adopted. In this context, there are legislative reform initiatives under discussion in the country that have the common objective of establishing, from different perspectives and formats, an extrajudicial enforcement model, as well as proposals for using the procedural transactions of the parties in this regard. The use of judicial cooperation instruments for this purpose is beginning to be envisaged. Judicial cooperation (arts. 67 to 69, Code of Civil Procedure) is an institute of colossal dimensions, with vast unexplored possibilities, especially in enforcement. This doctoral thesis proposes, based on the multi-door executive justice, the contemporary conception of the natural judge and the guideline of broad flexibility, the possibility and adequacy of using interinstitutional judicial cooperation (arts. 1, II, 15 and 16, Resolution 350/2020 of the National Council of Justice) to enable extrajudicial enforcement, by sharing jurisdiction with enforcement agents other than the state court, in the event of attribution of jurisdiction based on a conventional normative source, primarily through agreement between judicial bodies and external subjects or institutions, instrumentalized through institutional protocols. The approach is based on the plurality of enforcement agents and executive acts, under the supervision and in support of the judicial body, with observance of institutional capacities, as well as on the optionality of access to the non-judicial enforcement route. To this end, the resizing of the jurisdiction profile and the search for effectiveness in the panorama of Brazilian civil enforcement are analyzed. Next, the insertion of extrajudicial enforcement in the framework of multi-door justice and interinstitutional judicial cooperation as an instrument for attributing executive competence is addressed, to finally dedicate attention to extrajudicial enforcement through interinstitutional concertation. The research is bibliographical and documentary, with application of the dialectical and hypothetical-deductive method.