The term judgment creditor (or exequente) designates the active party in enforcement proceedings, being the holder of the substantive subjective right embodied in an enforcement title. Primarily inserted in Civil and Labor Procedural Law, the judgment creditor is the legitimate party to promote the coercive satisfaction of an unpaid obligation, exercising the right of action under the aegis of jurisdictional effectiveness.
Concept and Legal Basis
In the Brazilian legal system, the judgment creditor is the creditor—holder of a judicial or extrajudicial enforcement title—who, faced with the resistance or non-performance of the debtor (judgment debtor), triggers the sentence compliance phase or the autonomous enforcement process. The legal nature of the judgment creditor is that of an active procedural party, possessing extraordinary or ordinary legitimacy to demand the debtor's asset seizure, aiming at the satisfaction of the credit.
The executive procedural legal relationship is guided by the principle of asset liability, enshrined in Art. 789 of the Code of Civil Procedure (CPC/15), 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 judgment creditor, therefore, is the subject who drives the state apparatus for the expropriation of assets, observing the limits of adversarial proceedings and full defense.
Historical Origin and Evolution
The figure of the judgment creditor finds its roots in Roman Law, specifically in the actio in personam. Historically, enforcement evolved from manus injectio (enforcement against the debtor's person) to asset-based enforcement, consolidated by modern Law. In Brazil, the Codes of Civil Procedure of 1939 and 1973 already structured the figure of the creditor in enforcement, but the 2015 CPC promoted a significant rupture by unifying the sentence compliance procedure, reducing the autonomy of the autonomous enforcement process and bringing the judgment creditor closer to a role of greater prominence in locating assets, according to Art. 773 and following of the current statute.
Legal Provision and Practical Application
The legitimacy of the judgment creditor is delimited by Articles 778 to 780 of the CPC/15. Art. 778 is exhaustive in listing who can promote enforcement: the creditor to whom the law grants an enforcement title. The jurisprudence of the Superior Court of Justice (STJ) reinforces that active legitimacy is tied to the ownership of the credit contained in the title (Súmula 26/STJ, applied analogously to executive legitimacy).
Within the scope of Labor Law, the figure of the judgment creditor assumes contours of social protection, governed by Articles 876 to 892 of the Consolidation of Labor Laws (CLT), with subsidiary application of the CPC. The Superior Labor Court (TST) has consolidated the understanding that the judgment creditor, in labor enforcement, holds the privilege of food-related credit, which imposes on the magistrate the duty of office in the search for assets (Art. 765 of the CLT).
Related Principles and Doctrinal Divergences
The exercise of the position of judgment creditor is bounded by the Principle of Availability (the judgment creditor may withdraw from enforcement at any time, Art. 775, CPC) and by the Principle of Least Onerousness (Art. 805, CPC), which acts as a limit to the judgment creditor's power to demand enforcement. A contemporary doctrinal divergence lies in "forced enforcement as a fundamental right." Authors such as Fredie Didier Jr. argue that the judgment creditor has a fundamental right to the effectiveness of enforcement, which limits the judge's discretion in denying atypical coercive measures (Art. 139, IV, CPC), a topic that has been the subject of intense debate in the STF (ADI 5941).
Contemporary Relevance and Impacts
Currently, the role of the judgment creditor has been transformed by technology. With the advent of SISBAJUD, RENAJUD, and INFOJUD, the judgment creditor is no longer a mere spectator, but an active collaborator in the search for assets. Recent jurisprudence from higher courts (notably the STJ in REsp 1.782.418/RJ) has discussed the possibility of the judgment creditor requesting atypical coercive measures, provided they are substantiated and not offensive to the judgment debtor's human dignity, consolidating a more dialectical and less static view of enforcement.
Legal and Jurisprudential References
- Code of Civil Procedure (Law No. 13.105/2015): Arts. 771 to 796 (On the Enforcement Process); Art. 778 (Active legitimacy).
- Consolidation of Labor Laws (Decree-Law No. 5.452/1943): Arts. 876-892 (On Labor Enforcement).
- STF, ADI 5941: Rapporteur Justice Luiz Fux, on the constitutionality of atypical executive measures.
- STJ, Súmula 26: "The assignee of mortgage credit may promote mortgage foreclosure."
- TST, Normative Instruction No. 39/2016: Provides for the application of CPC rules to Labor Process.
