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Positive sanctions with atypical executive measures: a new perspective on art. 139, IV of new Civil Procedure Code

Grant number: 19/25028-1
Support type:Scholarships in Brazil - Scientific Initiation
Effective date (Start): July 01, 2020
Effective date (End): December 31, 2020
Field of knowledge:Applied Social Sciences - Law - Public Law
Principal researcher:Fernando da Fonseca Gajardoni
Grantee:Renan Augusto Pessanha
Home Institution: Faculdade de Direito de Ribeirão Preto (FDRP). Universidade de São Paulo (USP). Ribeirão Preto , SP, Brazil

Abstract

With the growing need to face the main problems of justice in Brazil: the length of the process and the difficulty of materializing the judicial decisions, due - sometimes - to the lack of cooperation of the parties, the Brazilian procedural law experiences an important period of transformation, marked by the continuous search for instruments able to overcome these problems.In this sense, there is a flourishing debate about the use of incentives for cooperation/collaboration through positive sanctions (v.g. plea agreement , plea bargaining, leniency agreements) as alternatives to overcoming these problems.Inserted in these transformations the New Code of Civil Procedure brought interesting - but controversial - legal mechanism: the art. 139, IV that by increasing the atypicality of the executive implementation of court decisions, enables the judge to use inductive measures, in which positive sanctions may be included.Since then, doctrine and jurisprudence have structured criteria for the application of this legal mechanism - which even had its constitutionality questioned. However, to what It seems that the construction of these criteria has been thought as from the exclusive coercive measures. Thus, either because there is no consensus on the existence of measures atypical inductive, whether by their conception as synonymous with coercive measures; doubts arise, and the consequent need to investigate the possibility or impossibility and behavior of award sanctions as an incentive for cooperation as from art. 139, IV of NCPC/ 15. This being what the present research proposes. (AU)

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