O JUIZ SEM RÉDEAS NA EXECUÇÃO PECUNIÁRIA ATÍPICA

Abstract

Within the context of enhancing the effectiveness of judicial decisions within Brazilian civil procedure, Article 139, IV, of the Code of Civil Procedure introduced so-called atypical enforcement measures. These have sparked intense constitutional controversy due to their potential to restrict fundamental rights, such as personal freedom and due process. The core issue addressed is whether such measures can be sustained under the normative framework of a Constitutional State governed by the rule of law. This study is justified both socially, given the impact on individual liberties, and academically, due to the lack of doctrinal analyses applying rigorous normative scrutiny to these enforcement mechanisms. The general objective is to evaluate, through Luigi Ferrajoli’s theory of constitutional guarantees, whether the provision aligns with the 1988 Federal Constitution. The article is structured in two analytical sections: the first presents the theoretical foundations of the guarantee theory as a hermeneutical framework; the second critically assesses Article 139, IV, under that theory. The methodology is qualitative, using an analytical-deductive method, drawing upon jurisprudence from the Brazilian Supreme Court, constitutional provisions, and specialized doctrine. The findings indicate that, although formally valid, the provision is materially unconstitutional due to the lack of objective parameters and the undue expansion of judicial discretion. Legislative revision is recommended to ensure compliance with constitutional guarantees.