Mitigação do princípio da congruência no cumprimento de sentença: Limites da discricionaridade judicial e princípio do contraditório.

This paper is about the mitigation of the matching principle within sentence serving procedures with respect to obligations to do, do not do and deliver something governed by the articles 461 and 461-A of the Brazilian Code of Civil Procedure (CPC). It points out that the matching principle is a con...

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Bibliographic Details
Main Authors: Baleotti, Francisco Emilio, Luizão, Jose Mauro
Format: Article
Language:Portuguese
Published: Del Blanco Editores 2012
Online Access:https://dialnet.unirioja.es/servlet/oaiart?codigo=4406930
Source:Riedpa: Revista Internacional de Estudios de Derecho Procesal y Arbitraje, ISSN 1989-3892, Nº. 3, 201227 pags.
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Mitigação do princípio da congruência no cumprimento de sentença: Limites da discricionaridade judicial e princípio do contraditório.
Summary: This paper is about the mitigation of the matching principle within sentence serving procedures with respect to obligations to do, do not do and deliver something governed by the articles 461 and 461-A of the Brazilian Code of Civil Procedure (CPC). It points out that the matching principle is a consequence of the principles of duty of the parties to present evidence, which enshrine the inertia of the jurisdiction, and aims at ensuring the impartiality of the judge and the full exercise of the adversarial principle. It notes that the power given to the judge in choosing the executive means to meet the creditor's claims, preferably held in the specific form, elapsed from a legislative choice based on the requirement of the effectiveness of judicial provision. It weighs that this margin of judicial discretion also applies to the author's immediate and mediate injunction requests. It concludes that the mitigation of the matching principle is not sufficient to compromise the impartiality of the judge and the compliance with the adversarial principle because the choice of executive means is ruled by stipulations of the legal governing mechanisms coupled with the requirement of complying with the principles of dignity and least cost to the legal realm of the party executed which likewise inform the execution.

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