Abstract
In Brazilian Civil Procedure, the search for debtors’ assets is viewed as primarily the creditor’s responsibility. But whenever the creditor has exhausted the means to search for assets, the law provides for a subsidiary state activity: the judge or other court personnel can help in order to provide effective relief in execution proceedings. On the other hand, the new Code of Civil Procedure enacted in 2015 has strengthened the debtor’s procedural legal duties of disclosing the existence and location of assets, and established general clauses of coercion that allow the judge to force and pressure the debtor to comply, and many other methods that might help to achieve a more efficient enforcement proceeding such as notarized notices of dishonor, the register of money judgments in bad debtor’s lists and creditwatch services, litigation agreements regarding assets, sales by private initiative, etc. In comparative perspective, the Brazilian new legal system seems to be a middle way between many other jurisdictions and so far has proven to be more effective than the format that existed prior to the reforms.
This article was produced for a conference held at the Ritsumeikan University in Kyoto, Japan, in November 2019. I would like to thank Professor Dr. Masahisa Deguchi for his honorable invitation.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Similar content being viewed by others
Notes
- 1.
The National Council of Justice (an administrative body that organises Civil Justice in Brazil) publishes yearly a report (Justice in Numbers or “Justiça em Números”). The report, of 2017 says that in total, the new cases filed regarding execution are 6.900.525 (almost 7 million). In the last 5 years, almost 25 million new cases. Execution proceedings not only last longer in Brazil than cognition proceeding, but they also tend to burden the Judiciary much more. More than half of all pending procedures in the country relate to execution. In most cases, the main difficulty is to find the debitors assets.
- 2.
There is an English translation of the new Brazilian Code of Civil Procedure, which is available at my profile at the website academia.edu at the following link: https://www.academia.edu/34624319/Brazilian_Code_of_Civil_Procedure_-_Translated_to_English. Accessed 07 January 2020. In the same webpage there is a Spanish version of the Code as well.
- 3.
The main differences are the execution measures that can be used in either one; and the possibilities for the judge to act on her own motion.
- 4.
The list of executive titles in Brazil is very generous. Article 515 of the Code of Civil Procedure lists the titles of judicial origin, such as decisions, sentences and the judicial confirmation of transactions or agreements betwenn the parties. And article 784 lists titles of contractual basis. These comprehend checks, lettres, duplicates, warrants, and some types of contracts (as long as they are in written terms, with 2 witnesses, or signed by members of the Public Prosecution Office or Public Defender Service). Brazilian Law also provides for a proceeding called “ação monitória”, similar to european Mahnverfahren, by which the creditor files a complaint with written proof of the credit (articles 700 until 702 of the Code of Civil Procedure). The judge issues a payment order against the debitor and, depending on the debitors atitude (if she does not oppose to it), this order becomes an executive title and the proceeding follows an enforcement track. If the debitor opposes to it, defending against the payment order, the proceeding follows a cognitive track similar to a normal lawsuit for the decision about the existence of the debt.
- 5.
In this volume we can find an overview of several different types of enterprises that provide this kind of service, like the German Schufa-kind companies or the common law discovery or self-help mechanisms to work on the “asset’s hunt” that the creditor has to deploy, as Richard Marcus referred to the activity of finding the debtor’s assets. See Marcus (2020); Hess (2020).
- 6.
An influence of the favor debitoris that has its origins in roman Law. See Silva (1998), pp.91–100.
- 7.
Dinamarco (2009), p.62.
- 8.
Didier Jr. et al. (2012), p.56.
- 9.
Art.520 and 776 of the Code of Civil Procedure. Didier Jr-Cunha-Braga-Oliveira. Curso de Direito Processual Civil, cit., p.63.
- 10.
Cãndido Dinamarco. Instituições de Direito Processual Civil, cit., p.207.
- 11.
See Shimura (2005).
- 12.
Talamini (2003), pp.230, 336.
- 13.
The most debated case is that of the telephone app called WhatsApp. The enterprise who owns the app refused to obbey to court orders to identify users and provide messages, and therefore had been temporalily suspended and the app was shut down for some days.
- 14.
Dinamarco (2009), p.80.
- 15.
Didier Jr. et al. (2012), pp.328–329.
- 16.
Assis (2007), p.260, 441.
- 17.
However, there are some information that are protected by bank secrecy. Banks must inform on the existence of assets (for example, the existence of bank accounts) and the amount of money deposited (article 854 of the Code of Civil Procedure). Banks are not obliged, though, to present the full records of transfers, persons that deposited etc., for these specific records the Judiciary must issue a specific order to unveil bank secrecy.
- 18.
- 19.
Didier Jr. and Cabral (2018), p.193–228.
- 20.
References
Assis A (2007) Manual da Execução, 11th edn. RT, São Paulo
Cabral A (2015) Der Einfluss des deutschen Rechts auf die neue brasilianische Zivilprozessordnung. Zeitschrift Für Zivilprozess International 20:381–395
Cabral A (2016a) Accordi processuali nel diritto brasiliano. Rivista di Diritto Processuale, LXXI, pp 773–793
Cabral A (2016b) Les conventions sur la procédure en droit processuel brésilien. Rev Int Droit Comp (3):629–648
Cabral A (2016) Vollstreckungsverfahren im Widerstreit zwischen Effizienz und Grundrechten: Einige Anmerkungen zu den jüngsten Reformen des brasilianischen Zivilprozessrechts. Zeitschrift Für Zivilprozeβ International 21:289–303
Cabral A (2018) Convenções processuais. Salvador, 2nd edn. 2018
Cabral A and Nogueira P (eds) (2017) Negócios processuais, 3rd edn. JusPodivm, Salvador.
Carvalho F (2015) Comentário. In: Wambier T et al. (eds) Breves comentários ao Código de Processo Civil. RT, São Paulo. pp 865–876, 1166–1173
Didier F Jr, Cabral A (2018) Negócios jurídicos processuais atípicos e execução. Rev Proc 43(275):193–228
Didier F, Cunha L, Braga P, Oliveira R (2012) Curso de direito processual civil, vol 5, 4th edn. JusPodivm, Salvador
Dinamarco C (2009) Instituições de direito processual civil, vol 4, 3rd edn. RT, São Paulo
Hess B (2020) The effective disclosure of the debtor's assets in enforcement proceedings, in this volume
Marcus R (2020) America's BYO Approach to Enforcing Money Judgments: Comment on Rechberger and Hess, in this volume.
Shimura S (2005) Título executive, 2nd edn. RT, São Paulo
Silva O (1998) Jurisdição e execução, Forense, São Paulo
Talamini E (2003) Tutela relativa aos deveres de fazer e não fazer, 2nd edn. RT, São Paulo
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2022 The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd.
About this chapter
Cite this chapter
Cabral, A. (2022). Searching Assets and Pressuring the Debtor for an Effective Enforcement: An Overview of the Brazilian Execution Proceedings. In: Deguchi, M. (eds) Effective Enforcement of Creditors’ Rights. Ius Gentium: Comparative Perspectives on Law and Justice, vol 91. Springer, Singapore. https://doi.org/10.1007/978-981-16-5609-5_18
Download citation
DOI: https://doi.org/10.1007/978-981-16-5609-5_18
Published:
Publisher Name: Springer, Singapore
Print ISBN: 978-981-16-5608-8
Online ISBN: 978-981-16-5609-5
eBook Packages: Law and CriminologyLaw and Criminology (R0)