O procedimento monitório e seus aspectos polêmicos no ordenamento jurídico brasileiro

AUTOR(ES)
DATA DE PUBLICAÇÃO

2004

RESUMO

The Brazilian monitory procedure has been available in our legal system for not even a decade, but yet it has been sufficient time to some problems concerning Law 9.079, from 14th July 1995 to come up. Doctrine diverges in many aspects, and jurisprudence is not uncontroversial, therefore some points, such as admissibility of service of process of the debtor by publication, the discussion about bilateral contracts and the competence of civil small claims court are subjects greatly discussed at the legal community. The development of this study was structured in 5 chapters. First, the notions of law and process that will guide the writing are presented. Following, some peculiarities of the Brazilian monitory procedure are demonstrated, based on international law to contrast similarities and differences of the Brazilian monitory procedure compared to the Italian, German, French and Portuguese legislation, and therefore, the polemical aspects, in order to finally analyse this compilation aiming at to suggesting lege ferenda. The discussion of this subject is utterly important currently, as the monitory procedure has been widely used at the daily juridical routine. As it presents some flaws, they should be evidenced, and after proper discussions on the subject, appropriate legislative alterations should be made in order to achieve its original objective. The monitory procedure was created in Italy and it has been used since 1922. However, its history indicates more remote times. The word monitory in legal sense means, to warn, admonish, reprehend so that debtor pays a certain amount of money, or delivery fungible good or a certain immovable property within 15 days, or still, to appeal to discuss it. The monitory process cannot be confused with the collection suit or the comminatory plea, as each one of these institutes present proper characteristics, although it is alike the liquidation of final amounts of sentence, as the objectives are identical. The terminological aspect should be revised, as the Code of Civil Process calls this procedure monitory suit, according to the old-fashioned civil concept of lawsuit, according to which each right would correspond to an appropriate claim to protect it in case it was violated. The appropriate term would be monitory procedure or monitory tutelage . The monitory writ, and the monitory appeal have a widely discussed juridical nature, and doctrinaire consensus has not been reached, although the conditional nature is adopted, as if monitory appeal is pleaded, they will suspend the efficacy of initial mandate, converting the rite into ordinary procedure with defense nature. Equally discussed are the effects of the interposition of appeal, which is understood to be received exclusively at the devolutive effect.

ASSUNTO(S)

processo civil ação judicial ação monitória civil procedure

ACESSO AO ARTIGO

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