Detalhes bibliográficos
| Ano de defesa: |
2016 |
| Autor(a) principal: |
Ferriani, Adriano
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| Orientador(a): |
Alvim, Arruda |
| Banca de defesa: |
Não Informado pela instituição |
| Tipo de documento: |
Tese
|
| 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: |
Brasil
|
| 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/18863
|
Resumo: |
The scope of this study is to analyze a judgement debtor's personal liability, based not only on what is expressly contained in the law regarding seizability and nonseizability. One has commonly seen, not only in the sphere of legal doctrine but also in jurisprudence, an understanding that extends seizability to certain assets considered by law to be non-seizable, although this conflicts with constitutional rules, as happens in the case of luxury residential real estate. Likewise, under certain circumstances, legal actors have argued the non-seizability of certain assets that, under the letter of the law, could be seizable. A debtor’s sole real estate property also serves to exemplify this situation. Although the law requires one’s living in the property as a prerequisite to considering it non-seizable, there is an understanding that, although the judgement debtor does not reside in the property, but can demonstrate that it is rented and is a source of income (the rental amount) essential to his/her subsistence, nonseizability also applies. The arguments presented by legal actors that extend or limit interpretation of the legal text have developed around the principle of the dignity of human beings, of fundamental rights, of minimum existential needs, of minimum patrimony, of weighting, and of proportionality. Thus, such precepts are examined with the intent of critically examining statutory law as regards personal liability and understanding how infra-Constitutional texts should be brought into line with Constitutional rules, as well as the role of weighting and proportionality in order, on the one hand, to ensure that the creditor receives his due whenever possible, and on the other hand, to respect rights and material assets that, if seized, may violate the dignity of the judgement debtor. Also examined is the legal position of the creditor, who also possesses dignity and material rights that merit protection |
