The term "executed" (or "judgment debtor") designates the passive party in a procedural legal relationship of a satisfactive nature, being the subject against whom the claim for forced compliance with an obligation is directed, whether civil, criminal, or labor-related. Their legal position is defined by subjection to the coercive power of the State in the pursuit of the effectiveness of jurisdictional protection.
Concept and Foundation
In technical-legal terms, the executed party is the passive party in forced execution, the person (natural or legal) upon whose assets or legal sphere the executory claim falls. The legal nature of the executed party is that of a passive subject of the procedural relationship, subject to patrimonial liability, as advocated by Art. 789 of the Code of Civil Procedure (CPC/2015), which establishes that the debtor is liable with all their present and future assets for the fulfillment of their obligations, except for legal restrictions.
The distinction between debt (Schuld) and liability (Haftung) is fundamental to understanding the institute. While debt refers to the legal duty to perform, liability is the state of subjection of the executed party's assets to judicial aggression. The executed party is not necessarily the original debtor; they may appear as a secondary liable party or a third-party guarantor, according to the procedural technique of extraordinary legitimacy or secondary patrimonial liability.
Historical Origin and Evolution
Historically, the figure of the executed party evolved from personal execution—where the debtor's own freedom or body answered for the debt (manus injectio in Roman Law)—to patrimonial execution. The transition to liability limited to assets reflects the humanization of Law and the consolidation of the Democratic Rule of Law. In Brazil, the 1973 Code of Civil Procedure and, more recently, the 2015 Code, consolidated procedural syncretism, bringing the cognitive process closer to the executive phase, guaranteeing the executed party substantial adversarial proceedings through objections to execution (Art. 914, CPC) and the plea of pre-executivity.
Legal Provision and Framework
The Brazilian legal system regulates the figure of the executed party primarily in the CPC/2015, especially in articles 779 et seq., which delimit passive legitimacy. The Federal Constitution, in its Art. 5, item LIV, ensures due process of law, a norm that guides the actions of the executed party by granting them instruments of defense against abuses in patrimonial constriction.
Jurisprudence and Current Understanding
The jurisprudence of the Superior Courts (STF and STJ) has refined the position of the executed party on sensitive issues. Notable is the interpretation regarding the unseizability of the family home (Law 8.009/90) and the mitigation of the rule of unseizability of salaries, where the STJ, in repetitive appeals, relaxed the protection to allow the attachment of a percentage of remuneration, preserving the dignity of the executed party (EREsp 1.874.222/DF).
In the scope of Labor Law, the figure of the executed party expands through the disregard of legal personality (Art. 855-A of the CLT), where partners and administrators can be included in the passive pole of the execution, reflecting the application of the principle of the primacy of reality and extended patrimonial liability.
Related Principles and Doctrinal Divergences
The executed party is under the aegis of the principles of least onerousness (Art. 805, CPC) and the effectiveness of execution. Contemporary doctrine diverges intensely on the scope of atypical means of execution (Art. 139, IV, CPC), such as the seizure of driver's licenses and passports. The STF, in ADI 5.941, settled that such measures are constitutional provided they are subsidiary, proportional, and reasoned, respecting the adversarial principle and avoiding the transformation of the executed party into a subject of purely punitive sanction.
Contemporary Relevance
The relevance of the executed party in the current legal system lies in the balance between the search for creditor satisfaction and the protection of human dignity. Technology, through systems such as SISBAJUD, RENAJUD, and INFOJUD, has intensified the effectiveness of execution, requiring rigorous jurisdictional control so that the position of the executed party does not become a state of permanent economic annihilation. Current doctrinal debate focuses on "fair execution," where the executed party is not a mere object of constriction, but a subject of essential procedural rights.
Legal and Jurisprudential References
- BRAZIL. Law No. 13.105, of March 16, 2015. Code of Civil Procedure.
- BRAZIL. Constitution of the Federative Republic of Brazil of 1988.
- BRAZIL. Decree-Law No. 5.452, of May 1, 1943. Consolidation of Labor Laws (CLT).
- STF. ADI 5.941/DF. Rapporteur: Justice Luiz Fux. Judgment: 02/23/2023.
- STJ. EREsp 1.874.222/DF. Special Court. Rapporteur: Justice João Otávio de Noronha. Judgment: 04/19/2023.
- Law No. 8.009, of March 29, 1990. Provides for the unseizability of the family home.
