Analysis of the interpretative divergence of article 833, x, of the Civil Procedure Code

Abstract

The execution process aims to compel the debtor to fulfill his obligation to the creditor, and the Brazilian legal system has established exceptions to the constrictive measures to preserve the fundamental rights of the executed debtor. Among such exceptions is the unseizability of the amount deposited in savings accounts, up to the limit of forty (40) minimum wages, according to article 833, X, of the CPC. The Superior Court of Justice granted a broad interpretation of the mentioned provision to cover the amount, even if deposited in other account types. Applying this understanding has generated divergence among the Civil Chambers of the Paraná State Court of Justice. Considering the value unseizable because it constitutes a financial reserve, up to the limit of 40 (forty) minimum wages, or just because it is lower than this financial limit, depending on the Judging Chamber. This study sought to understand the origin of this divergence in the application of the rule, as well as to compare the grounds for these understandings and their procedural effects. We observed that the divergence stems from the interpretation of the decisions rendered by the Superior Court of Justice and the presence of legal principles in the interpretation that considers only the financial criterion in analyzing the request for unseizability. The criteria used for the analysis imply the attribution of the burden of proof, which is incumbent on the creditor in the hypothesis of the financial criterion only, and on the executed party when considering the use of the amount seized as a financial reserve. We also verified the existence of this divergence in the labor execution process when the CPC is applied subsidiarily. Finally, the possible conflict of rules between articles 833, X, and 835, I and §1 of the CPC was observed, given the impossibility of attachment in cash in the event of credit enforced of up to 40 (forty) minimum wages, when this amount is considered unseizable, regardless of other factors.