A prescindibilidade do critério da subsidiariedade na aplicação de medidas executivas atípicas como mecanismo de maior efetividade à execução da obrigação alimentar

Abstract

The art. 139, IV, of the Code of Civil Procedure introduced the general power of execution into the Brazilian legal system. This power authorizes the magistrate to use executive means not provided for by law (atypical) whenever he deems it necessary for the effectiveness of executive supervision. Despite being questioned, the Federal Supreme Court recognized the constitutionality of this legal provision. Before the declaration of constitutionality, the Superior Court of Justice already indicated some criteria for the application of this device. Subsidiarity is one of these criteria and consists of the need for the judge to exhaust typical executive means to make use of atypical means. This work questions whether the subsidiarity criterion should be mitigated in the case of the execution of a maintenance obligation. Part of the doctrine maintains that yes, given the urgency and nature of the maintenance obligation and also because the legislator did not express this need. Another party believes not, arguing that subsidiarity is an applicable criterion for executing an obligation to pay an amount of any nature. After the bibliographical and jurisprudential research carried out, it was concluded that the criterion of subsidiarity must be mitigated in food executions, given the urgency and nature of the obligation that deals with the protection of the fundamental right to life, as well as in consideration of the greater effectiveness of execution.