Detalhes bibliográficos
| Ano de defesa: |
2007 |
| Autor(a) principal: |
Menini, Jefferson Santos |
| Orientador(a): |
Lopes, João Batista |
| Banca de defesa: |
Não Informado pela instituição |
| Tipo de documento: |
Dissertação
|
| Tipo de acesso: |
Acesso aberto |
| Idioma: |
por |
| Instituição de defesa: |
Pontifícia Universidade Católica de São Paulo
|
| Programa de Pós-Graduação: |
Programa de Estudos Pós-Graduados em Direito
|
| Departamento: |
Faculdade de Direito
|
| País: |
BR
|
| Palavras-chave em Português: |
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| Palavras-chave em Inglês: |
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| Área do conhecimento CNPq: |
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| Link de acesso: |
https://tede2.pucsp.br/handle/handle/7524
|
Resumo: |
The present study investigates the technique of the civil procedural code concerning the accomplishment of the specific judicial sentence, which aims at solving the crises of unfulfilment in the obligations of doing, not-doing and delivering, through the influence of the debtor in the fulfilment of these obligations: the daily fine. What motivates this study is the perplexity that arises from the exaggerated figures imposed by the sentences using that mandatory measure, especially towards those not part in the process, but as third parties responsible for the fulfilment of the sentence. The analysis of this topic is based on different procedures: (i) analysis of the historical evolution of that technique with special emphasis on the latest procedural and legislative modifications; (ii) examination concerning the existence or non-existence of a similar mechanism in foreign law systems; (iii) identification of the nature and attributes of the specific judicial sentence; (iv) consideration about the guiding parameters for the fulfilment of the sentence; (v) observation of the main characteristics of that sentence, such as its determining elements, the persons subject to it, its mandatory quality and the beneficiaries of the credit generated by its incidence. Furthermore, the study comprises due to its close relation to the theme the innovation in the procedural civil code that broadens the field of incidence of the mandatory technique by instituting a sanction aiming at the spontaneous fulfilment of an obligation of paying a specific amount based on a sentence. The data analysed confirm that the daily money sanction represents an adequate and necessary technique for the fulfilment of the result-aimed judicial civil procedure, mainly at the accomplishment of the specific sentence. However, its use must be based on the principle of proportionality so as to prevent the plaintiff from obtaining illicit profit and to allow access to a fair system of judicature. Although not given much attention by doctrine and jurisprudence alike, the incidence of the daily fine towards the third party stands as nonapplicable, since it lacks legal basis. Nevertheless, the authority of the judicial sanction is plainly acknowledgeable, for it must be observed by all parties in the process. The solution, then, lies in the use of the fine in cases of acts that are offensive to the jurisdiction |
