Negociação jurídica processual na execução: análise da possibilidade de constituição de títulos executivos extrajudiciais

Abstract

This work aims to analyze the viability to create enforceable instruments out of court through legal transactions and its consonance with the procedural public order. First, established by the current legislation, and the principled foundations provided for in the process, which ensure the presence of the parties’ liberty in the procedure. Then, the instrument enforceable in court are analyzed, verifying their requirements and its limits in matter of law enforcement. The institute of enforceable instruments out of court gains new contours in the current legislation, in which the civil procedure reconciles aspects of the public and private law. this section ends presenting the incidence of legal transaction within the executing procedure and its compatibility with the executive system, in view of the principles and current procedural rules that enable the selfdetermination of the parties. The following chapter aims to debate the concept of instrument enforceable and its historical development, which will allow to identify that this instrument was conceived as a technique that granted the immediate enforcement of the documents, without the cognizance procedure. Therefore, the instrument is composed by inherent and extrinsic requirements. In the material aspect, there is the obligation contained in the title, which must be precise, net, and admissible, while the formal aspects based on the legislation enables the executive procedure. At the last section, the study focus on the possibility of the creation of enforceable instrument out of court through legal transaction, to make more flexible the formal requirements that constitutes the title, allowing the players to adapt the formal aspects in view of each concrete case. Lastly, it presents the constitutional principle of freedom, as well as the procedural principle of respect to the self-regulation in the procedure, and the rule contained in article 190 of the Code of Civil Procedure to show that are enough instruments to assure the recognition of the creation of enforceable instruments from procedural legal transactions.