A (im)possibilidade de aplicação de medidas executivas atípicas no âmbito das execuções fiscais

Abstract

The present work seeks to examine the application feasibility of atypical executive measures in tax execution procedures. Initially, it starts with the study of the principles of effectiveness, patrimonial responsibility, less onerous execution, and proportionality, through the eyes of executive protection in the Civil Procedure Code of 2015. It is observed, in this context, the existence of frequent conflicts between the search for the effectiveness of executive judicial protection and the fundamental rights of the executed, embodied in the protection of human dignity. Then, the work approaches the framing of the unnamed measures in the current procedural code, in particular about the general power of effecting, enshrined in art. 139, which has expanded its scope of application to payment obligations. Also analyzed were the doctrinal and jurisprudential discussions concerning the application of the referred measures, considering the Direct Action of Unconstitutionality 5.941/DF, still in progress at the Federal Supreme Court, and the minimum requirements and standards indicated for its proper use. Next, we start with the study of tax enforcement, in such a way as to seek the proper definition of this procedure and verify the possible dialogue between the Taz Enforcement Law (Law 6.830/80) and the Civil Procedure Code (Law 13.105/15) in the current legal system. The procedural prerogatives of the Public Treasury are also analyzed, given the principle of isonomy in the Civil Procedure. In the end, though the critical analysis of the arguments brought in the decision that judged Habeas Corpus 543.870/PR, together with the development of the precepts obtained throughout the present work, it is concluded that the atypical executive measures are fully applicable to tax execution, provided that certain objective standards are observed.