Exceção de pré-executividade e embargos do devedor à luz da lei nº 11.382/06.

Abstract

The embargoes of the debtor had suffered to a change with the new Law number 11,382/06, what it reflected in the scope of the doctrinal institute called pre-executivity exception. This change causes a problematic one with important beddings that they must be argued, in view of that the embargoes can independently be opposing of previous distrainment. It will be that the pre-executivity exception tends to disappear or will remain in the legal system? The pre-executivity exception if constitutes in one of the subjects of the highest legal relevance, since this institute, created by the doctrine and widely accepted for the jurisprudence of the native courts, came frequently being used inside of the execution proceeding, being that the instauration of a regular contradictory in this species was not admitted until has some time behind, therefore, so that the quarrel and proves of the legal unfeasibility of that execution compelled the debtor to assure, previously, the judgment of the execution, offering good the distrainment for only later exerting its defense through the action of embargoes. Thus, it was arisen hypothesis of the maintenance of the same exception in the cases where the debtor lost the stated period to embargo and had questions of public order to be questioned, since not vunerables, as well as the payment, the compensation, the lapsing and the decay, which takes to the extinguishing in executivis obligation in, and also, as for the transistion of the law that sufficiently excited difficulty to that they were invested in the procedural subjective right of paying or nominating good the distrainment, act complex accomplishment pendant still or consumption. Objective, in such a way, to question the importance of the pre-executivity exception ahead of the occured change in the systematics of the embargoes, deducing itself concerning its effectiveness and necessity. This study it was organized of mold to recognize the embargoes of the debtor in its main points, sprouting, legal requirements of processing and what in it changed for the advent of the Law number 11.382/06. It was analyzed, indeed, the pre-executivity exception, its beddings and fit hypotheses, long ago and nowadays. In such a way, through a severe bibliographical research and managing the methods exegetic-legal and description-evolution, the law was seen that the doctrinal institute if keeps firm, after remodel law, and in this climate of transistion, being able the debtor to use it to safeguard its rights, still in the foreseen cases not to be alleged by means of embargoes, or when the stated period for offer has transcorrered. One concludes, therefore, that it is possible to allege the substances of public order, on to the conditions of the action and the right of action ones, since not vunerables, when the allusive probatory delay to the excited pretension does not become necessary, what it strengthens the argument of the maintenance of the pre-executivity exception.