The preclusive exception holds significant importance in procedural law, particularly within the realm of execution proceedings.
It is a defense mechanism that enables the defendant to promptly challenge flaws or abnormalities in the legal process without having to provide security or assets to the court.
Throughout this article, we will examine the key elements of this tool, from its definition and groundwork to its real-world uses.
We will examine how the exception of pre-execution differs from execution embargoes and how it can be strategically used to defend the executed.
What does a pre-executive exception refer to?
The exception of pre-executiveness is a procedural tool for the defendant to contest irregularities in an execution process without having to post a bond or provide assets.
The debtor can quickly and efficiently challenge the legality of the execution as long as the arguments can be verified without the use of complex evidence.
This exception is commonly employed in situations like debt limitation, parties’ unlawfulness, lack of executive title, or procedural mistakes such as errors in the execution citation.
The pre-executiveness exception is widely acknowledged in doctrine and jurisprudence as a crucial defense to prevent unjust enforcement actions, despite not being explicitly stated in the Civil Procedure Code (CPC).
The scope is confined to issues that can be identified by the court, specifically involving public order issues that do not need extensive evidence.
What is the purpose of the pre-executive exception?
The pre-execution exception enables the executed individual to challenge execution irregularities without following all standard procedural protocols.
Its aim is to highlight clear shortcomings that could nullify the collection, without requiring a pledge or guarantee of judgment.
This system allows for the accusation of public issues like expiry, illegality of the parties, and absence of the enforcement document.
The pre-executive exception also speeds up the process, enabling immediate correction of errors.
It is a crucial tool for protection, necessary for ensuring fairness and legal clarity during executions.
What can be argued in the preclusive exception?
In the event of pre-execution, the individual who is to be executed can make a claim.
- Public matters are questions that can be deemed null and void by the judge at any point, including issues like prescription, illegality of the parties, absence of an executive title, and so on.
- The video plays a crucial role in the process by highlighting issues such as the absence of proper citations, lack of judgment competence, and missing personal subpoenas, which all contribute to the process’s lack of validity from the start.
- Certain clauses are considered absolute nullities, meaning they cannot be rectified over time and necessitate the cancellation of proceedings, irrespective of the stage at which the decision is under review.
- Claiming that the debt does not exist, is not owed by the creditor, or has already been settled.
What is the last day to turn in?
The exception of pre-executiveness, related to public issues, can be raised at any stage of the execution process as long as there is no trial in progress.
The Civil Procedure Code does not set a particular deadline for filing the pre-execution objection petition.
It is advised to present it promptly.
Are there fees associated with pre-implementation exemptions?
The exception of pre-execution is typically viewed as a basic request in the execution procedure, rather than a standalone action.
For this reason, it is exempt from paying procedural fees.
How is the pre-executive exception implemented in reality?
A company is facing legal action for a debt that has been settled, as the creditor failed to acknowledge the payment and proceeded with the legal process.
The company can submit a pre-executive exception to the judge, showing that the debt has been settled and there is no need for further execution.
The judge has the authority to review the request and evidence, including payment proof, and may accept the exception, leading to the dismissal of the enforcement action and relieving the company from the wrongful collection.
What is the New CPC’s stance on the pre-executive exception?
The pre-execution exception is not specifically addressed in the New Civil Procedure Code (CPC), but it is widely acknowledged and considered a Praetorian construction by legal experts and court decisions.
Some CPC devices are essential for interpreting and implementing the pre-executive exception, specifically Articles 525 and 803.
Article 525 of the CPC serves as the foundation for the defense of the accused.
Article 525 of the CPC provides important guidance for the defense of the executed, in addition to addressing embargoes to execution.
Paragraph 11 permits the submission of objections within 15 days of becoming aware of the relevant facts or receiving the subpoena, regardless of any delays or additional summons, concerning matters like supervening events, validity and appropriateness of the seizure, assessment, and subsequent enforcement actions.
This legal rule enables the party who has been executed to challenge the execution by submitting a simple petition, without having to resort to a separate attachment action.
Article 803 of the Civil Procedure Code discusses the Reasons for Nullity of Execution.
Article 803 of the CPC addresses the reasons for the invalidity of execution, stating that:
The execution is invalid if:
The extrajudicial executive title does not match the rightful, clear, and enforceable obligation.
The execution is seldom mentioned as usual.
III comes into effect prior to the condition or term being present.
The judge can declare this article null either on their own initiative or at the request of a party, regardless of any execution delays.
Article 803 of the Civil Procedure Code is a crucial basis for the pre-executiveness exception by identifying the reasons for nullity of execution.
What is the purpose of STJ Sumula 393?
STJ’s Summary No. 393 addresses the applicability of the pre-execution exception in tax enforcement.
STJ – Summary 393:
The exception of pre-executiveness is allowed in tax execution for matters of expertise that do not need further evidence.
First Section, dated 23/09/2009, published on 07/10/2009
The Civil Procedure Code (CPC) establishes a procedural process for carrying out executions using both judicial and extrajudicial executive documents.
Taxes and administrative fines are subject to a specific procedure outlined in the Law of Tax Executions (LEF).
The STJ discussion focused on whether the pre-executive exception under the LEF was admissible, a matter that was resolved with the publication of Sumula 393.
The Sumula 393 content supports the enduring and indefinite nature of the pre-executive exception, in accordance with STJ case law.
The primary achievement was confirming that the pre-executiveness exception applies to tax executions, decisively resolving any doubts about its applicability in that area.
Can it be utilized to assert intercurrent prescription?
When the time limit for carrying out a procedural action expires during the enforcement process, the intercurrent prescription may be invoked as a reason for exemption.
The prescription, whether common or intercurrent, is considered a public matter and can be requested at any level of jurisdiction, including through the pre-executiveness exception.
Requirements for claiming intercurrent prescription:
- The exequent’s inertia happens when they fail to perform a required procedural action for a duration exceeding the specified period.
- The time limit for making a prescription is the same as the deadline for debt recovery.
- It is crucial to verify if there were no factors that stop or delay the deadline for prescription.
Is pre-executiveness an exception in the Special Judgment?
In the Special Judges, the exception of pre-executiveness is accepted in certain situations, even though it is not explicitly stated in Law 9.099/95, following the principles of simplicity and speed.
Its utilization is allowed in cases concerning public order that can be evaluated without requiring evidence, such as the expiration of a claim or judicial incapacity.
Jurisprudence has established that this procedural mechanism can be employed within the Special Judges system, ensuring the defendant the opportunity to mount an effective defense without having to ensure a verdict.
What distinctions exist between embargoes and the pre-executiveness exception?
The embargoes to the execution and the exception of pre-execution, while both serving as forms of defense against execution, differ in their characteristics, objectives, and processes.
Lawyers and lawmakers need to consider these variations to select the most suitable approach for each situation.
Will we examine the primary characteristics of each one?
Nature and legal prediction
- Embargos to the execution serve as an independent form of defense outlined in the Civil Procedure Code. They operate as a legal recourse during the execution process, enabling the party being executed to contest both substantive and procedural matters.
- The pre-executive exception is a legal concept not specifically mentioned in the CPC but acknowledged by courts as a quick defense method for addressing issues that don’t require evidence production.
Objective and range
- Embargos to the execution provide a comprehensive defense, addressing both procedural and substantive issues.
- It is designed for public matters that can be quickly resolved without complex evidence – pre-executive exception.
Time and timing of intervention
- Embargoes on execution must be filed within 15 days from the valid notification of the party being executed. This time limit is strict and requires adherence to legal procedures.
- The pre-executive exception can be raised at any point, even in a subsequent instance, as long as the raised issues are related to public policy and do not require further evidence.
4. Types and expenses
- Embargos to the execution involve paying procedural costs and often providing a guarantee of judgment. They are assigned to the main process through a specific procedure.
- Pre-executive exception does not necessitate proof of judgment or payment of costs. It is filed directly within the execution documents through a straightforward request.
Judgment and assets are important.
- Embargoes on execution are assessed through a ruling that enables a comprehensive process of appeal, including the option for further legal action.
- Pre-executive exception is determined through an interim ruling, with the degree of the instrument coming into play in case of refusal. This preliminary decision does not entail an assessment of the execution’s merits.
Explore our range of embargoes for implementation.
The Pre-Exception as a Strategic Tool
Pre-execution exception is a highly significant strategic tool for advocacy, particularly in execution actions.
The exception of pre-executiveness is notable for enabling challenges to flaws in the executive process promptly and inexpensively, without the requirement of ensuring a decision or covering procedural expenses.
The second consideration involves the timing and manner of utilizing this tool.
The exception of pre-executiveness applies to urgent public issues like debt limits, illegal parties, or missing executive titles.
While the exception of pre-executiveness is a potent tool, it has limited procedural scope.
Its use must be careful and based on solid reasoning to avoid misuse or protectionism, which could lead to penalties for misconduct.
References.
The link provided directs to the official website of the Brazilian government where the text can be found.