A (des)necessidade de prévia intimação pessoal do devedor para a cobrança de multa pelo descumprimento de obrigação de fazer ou não fazer os efeitos do enunciado nº 410 da súmula do STJ e a mitigação do formalismo processual descrita pela lei nº 13.105/2015

Abstract

Initially, this thesis focuses to analyze the civil execution concept in order to understand its principiological aspects, legal nature, classification and species, determining elements to enable the application of the Statement No. 410 of the Superior Court of Justice (STJ). In Chapter 2, we will analyze the application of the Process Effectiveness Principle in the face of the compliance with judicial decisions, provided for in our Federal Constitution and endowed with a procedural nature in the face of the Article 1 of the Law No. 13.105/2015. Based on the assumption that Civil Procedural Law has undergone significant changes over the years, revealing the intention of bringing procedural instruments closer to the protected material rights, aiming a more agile and effective jurisdictional provision, in the Chapters 3 to 7 begins the study on the conceptual aspects of the comminatory fine (astreintes), as well as all the characteristics and controversies related to that penalty. After touring the types of obligations that its application is intended for, the initial term for its incidence, the legitimates to support its payment and the possibility of modulating its effects in the face of the preclusion and res judicata limits, it is time to examine the (un)necessity for prior personal subpoena of the debtor for the collection of a fine for non-compliance with the obligation to do or not to do. Thus, from the examination of the legislation, doctrine and domestic jurisprudence, this study aims to analyze the applicability of Statement No. 410 of the Superior Court of Justice (STJ), demonstrating its appropriateness, adequacy and effectiveness, without forgetting the mitigation of the procedural formalism fixed by Law No. 13.105/2015, which explained significant changes in the system of coercive fines