Da (in) constitucionalidade do uso da apreensão de passaporte e suspensão da carteira nacional de habilitação enquanto medidas executivas atípicas: uma análise da ação direta de inconstitucionalidade no 5.941/DF

Abstract

One of the main problems involving the civil enforcement process is the effectiveness of the executive means employed. If the reason for the executive phase is the fulfillment of an obligation, satisfying the recognizably reputable claim of the author, the impossibility of its realization due to the frustration of the means of execution is something that compromises the very functionality of the executive guardianship. With that in mind, the legislator inserted art. 139, IV, CPC, an opening clause that gives the magistrate broad powers to choose atypical executive means to force compliance with the obligation. It so happens that some of these measures had their constitutionality questioned through the Direct Action of Unconstitutionality No. 5.941/DF, reported by Minister Luís Fux. This work deals, as a general objective, with the legality of the seizure of the National Driver's License and suspension of the passport as coercive executive measures based on the questioning of the criteria for its application and the possibility of violating the essential core of the fundamental right to come and go. The method chosen for this work is the hypothetical-deductive one, in which the passage from a general premise to a particular result is sought. For this purpose, exploratory research will be used, with the formation of a bibliographical and jurisprudential base related to the theme, on which we will rely.