Bill No. 6204/2019 seeks, in a creative fashion, to reduce the bottleneck of court system’s executions and, as a result, can help solve the problem of low credit recovery in Brazil.
I once heard from a professor that execution is the raison d’être of the court system, what would be the use of an adverse judgment, or a title that establishes a debt, without this liability actually being met through the expropriation of the debtor’s assets?
In our current system, only the Judiciary Branch is granted the power to enter the realm of debtor’s equity to seek to compel it to pay its debts and give effect to the substantive law. With this, the court system ended up overloaded with execution proceedings that, according to data from the National Council of Justice – CNJ’s 2022 report Justiça em Números[1], are the majority (53.3%) and the longest (5 years and 11 months).
Seeking to reduce this bottleneck of Executions of debts that already reach the judiciary after several attempts to recover the credit, in 2019, Bill No. 6204/2019 was submitted, which aims to de-judicialize the executions of civil cases. In practice, the bill seeks the delegation of executive assignments, acts, and procedures to notary publics.
It is not new that our legislators seek to de-judicialize certain matters by delegating activities previously carried out exclusively by the Judiciary Branch to notary publics, such as the possibility of making inventory, conducting separation and divorce, in addition to rectifications of records and adverse possession, all out of court.
With this in mind, Bill No. 6204/2019 establishes the figure of the execution agent who will be the notary public of the notarial office that will be responsible for conducting the execution acts in notary publics, from its request and notification of the judgment debtor to the acts of expropriation, payments, and discharge.
From the processing of the bill, still in the initiating office (Senate) since 2019, it appears that 25 amendments have already been presented, most seeking to reduce the reach of the execution of civil case before the notary, either by reducing the amount of debts that can be collected to a maximum of one thousand minimum wages, or by dealing with who can be a party to these cases, excluding, in addition to those already mentioned in the sole paragraph of Article 1, the estate or who represents it.
It is noticed from the amendments submitted that the main criticisms of the Bill concern the power conferred on the notary public, advocating that the power of expropriation of assets could not be delegated, some suggesting the need for prior court’s authorization and some even suggesting the suppression of this power, so that the execution would follow in the notary only in its initial stage of notification and possible attempt to reach a settlement, returning to court if the payment was not made at will.
Nonetheless, the above critiques are not supported, especially if we take the principles of civil procedure into account, in particular the search for the full solution of a case on its merits, including final relief upon the merits, as provided for in Article 4 of the Code of Civil Procedure, in addition to the principles of efficiency, speed, and judicial economy that will be duly satisfied with the suggested de-judicialization.
Even in our current system of executions there are already several executive acts that are not carried out by the very judge conducting the case but by people under their control, such as the acts of attachment, accomplished by Marshals, the appraisal by Legal Appraisers and judicial sales by Public Auctioneers[2].
With the de-judicialization, the execution agent will conduct the process, but, whenever necessary, ex officio or at the request of the parties or third parties, may consult the competent court to solve a relevant question, as expressly provided for in items IX and X of Article 1 of Bill 6204/2019, and may also consult on issues pertaining to the judgment debt instrument and the executive procedure, in addition to requesting the court to order enforcement remedies, as provided for in Article 20 of the Bill, accordingly.
The perfect adequacy and constitutionality of the Bill has already been questioned, however, as well averred by Paulo Henrique Lucon, Luciano Araújo, and Rogéria Fagundes Dotti, “the de-judicialization of executions is a legislative option that does not violate any constitutional guarantee”[3].
As can be seen from Article 236 of the Federal Constitution, notary and registration services are exercised privately, by government’s delegation, and the corresponding activity is performed by notaries approved in a competitive civil-service examination, duly supervised at the local level by the local Courts and, nationally, by the National Council of Justice.
The Bill also sets forth that the parties must be represented by a lawyer, and ensures all constitutional guarantees of adversary proceeding and opportunity to be heard, either by raising doubts and inquiries about the procedure, as shown above, or by enabling the filing of motion to stay execution, which will be reviewed by the competent court, as provided for in Article 18 of Bill 6204/2019.
In point of fact, the bill introduces a number of developments that can help raise credit recovery rates in Brazil, such as the possibility of access, by the notary, to all terms, agreements and covenants established with the court system to search information, addresses, and assets of debtors.
Additionally, the Bill also provides, in its Article 28, that the States and the Federal District will define the tables of initial and final emoluments pertinent to the amount subject to execution. It will be recalled that the activity of notaries is performed privately, and their compensation depends on the work they provide, thus, the Bill brings a strong stimulus to the pursuit of credit satisfaction, insofar as the final fees will only be collected upon payment and discharge of execution.
Another interesting advance is the one addressed in Article 12 of the Bill, which provides that the execution agent, even without request of the parties, that is, on its own initiative, will draw up certificates referring to the start of execution, seizure and attachment, for the purpose of annotation in the relevant records, reducing red tape, and facilitating to overcome obstacles found in some notary publics. Lastly, the Bill also provides, in its Article 25 that creditors can seek the redistribution of their executions to the execution agents.
In view of this, the Bill is well-intentioned and, given the recent experience in other cases of delegation of assignments to notary publics, chances are high that several problems are successfully and creatively solved at once, reducing the bottleneck of executions in the court system, raising credit recovery rates and, as a result, reducing interest rates in the country.
[1]https://www.cnj.jus.br/wp-content/uploads/2022/09/justica-em-numeros-2022-1.pdf. Accessed on February 09, 2023
[2]https://www.conjur.com.br/2020-dez-10/opiniao-desjudicializacao-execucao-civil Accessed on February 10, 2023.
[3]Idem.
Available at: https://br.lexlatin.com/opiniao/desjudicializacao-das-execucoes-civis-e-recuperacao-de-credito-no-brasil
Autor: Fernanda Regina Negro de Oliveira • email: fernanda.oliveira@ernestoborges.com.br
