The protection of fundamental rights of debtors and creditors in civil execution and the necessary flexibilization of impossibilities to levy based on the principle of proportionality

A tutela de direitos fundamentais do credor e do devedor na execução civil e a necessária flexibilização das impenhorabilidades a partir do princípio de proporcionalidade

Jaqueline Mielke Silva(1); José Tadeu Neves Xavier(2)

1 PhD and Master’s Degrees in Law from the Universidade do Vale do Rio dos Sinos - UNISINOS, Professor of the Undergraduate and Master’s courses at the Law School of the Faculdade Meridional - IMED, and at the Escola da Magistratura do Trabalho do Rio Grande do Sul – FEMARGS, Associação dos Juízes do Rio Grande do Sul, Escola Superior da Magistratura Federal, Fundação Escola Superior da Defensoria Pública, Fundação Escola Superior do Ministério Público.
E-mail: [email protected]

2 PhD and Master’s Degrees in Law from the Universidade Federal do Rio Grande do Sul – UFRGS, Professor of the Undergraduate and Master’s courses at the Law School of the Faculdade Fundação Escola Superior do Ministério Público - FMP, at the Law School of the Faculdade Meridional – IMED and at the Escola da Magistratura do Trabalho do Rio Grande do Sul – FEMARGS. Government Attorney.
E-mail: [email protected]

Abstract

The conflict between fundamental rights of creditors and debtors is one of the contemporary problems faced in Civil Procedure and it should be approached from a constitutional perspective. Based on the premise that the dignity of the debtor is not absolute, but relative, this paper proposes the relativization of some hypotheses of impossibility to levy established by law, so as to also preserve the dignity of the creditor. This value judgment should stem from the principle of proportionality.

Keywords: Fundamental rights. Civil execution. Proportionality.

Resumo

A colisão entre direitos fundamentais do credor e devedor é um dos problemas contemporâneos enfrentados no âmbito da execução civil, cujo enfrentamento deve partir de uma perspectiva constitucional. Partindo-se da premissa de que a dignidade da pessoa do devedor não é absoluta, mas relativa, o presente artigo propõe a relativização de algumas hipóteses de impenhorabilidade previstas na legislação, de modo a também preservar a dignidade da pessoa do credor. Este juízo de ponderação entre direitos fundamentais do credor e do devedor deve ser realizado a partir do princípio da proporcionalidade.

Palavras-chave: Direitos fundamentais. Execução civil. Proporcionalidade.

1 Introduction

This paper analyzes the tension surrounding conflicts between fundamental rights of creditors and debtors within the scope of Civil Procedure, especially regarding some hypotheses of impossibility to levy established in the Brazilian Civil Procedure Code 2.015 (NCPC)1 and Law 8.009/90, which regulate impossibility to levy family assets.

The main analytical object of this study is the limitation imposed on the levy of earned income that is equal to or greater than 50 (fifty) times the monthly minimum wage and the (im)possibility to levy high-value family assets, based in the fundamental right of the creditor to timely and effective judicial protection, as a corollary of human dignity.

The approach springs from a constitutional perspective, based on studies on the conflict between fundamental rights, leading to a proposed application of the principle of proportionality to solve the dilemma.

The issue is also analyzed within the scope of comparative law, in two parts: first, the conflict between the fundamental rights of creditors and debtors is analyzed within the scope of civil procedure; second, specific hypotheses of impossibility to levy that could implicate a restriction of the fundamental rights of creditors are examined. Finally, a proposal based on the principle of proportionality is offered to deal with this issue.

2 The conflict between the fundamental rights of creditors and debtors in the scope of civil procedure based on the principle of human dignity

In contemporary society, situations involving a conflict between fundamental rights are becoming increasingly frequent. In Brazil, this often is the case due to the widening of the scope and the intensity given to the protection of fundamental rights established in the Federal Constitution of 1988. Although many conflicting situations are regulated by subconstitutional legislation, there are cases that lack regulation and in these cases, there is a need to solve the conflict arising from the simultaneous and contradictory constitutional protection of values or assets.

In the scope of civil procedure, tension lies within the conflict between fundamental rights of debtors and creditors, which are diametrically opposed. On the one end, there is the fundamental right of the creditor to judicial protection that is timely and effective, so as to provide results and, thus, protect the dignity of the creditor. On the other end, this protection of rights cannot entail the sacrifice of the debtor’s fundamental rights, which would damage his or her dignity.

Limits to levy are the most important expression of the protection of fundamental rights of debtors in the scope of civil procedure. This issue has also received attention from legislators in order to curb compensation for creditors, thus assuring the preservation of minimum fundamental rights of debtors. This concern has not always present throughout the history of Law, especially in terms of procedure. In Roman law, procedure was extremely violent, allowing corporal punishment and even death of the defendant2. Later, Roman law underwent a timid humanization, limiting the action of the plaintiff especially in terms of death and division of the body of the defendant3.

In the classical period, there were some cases of limitation to the seizure of assets, with the value seized being proportional to the value of the debt, which is similar to the current system used in Brazilian law for liability of the debtor in cases of forced execution. During that period of Roman law, there was a greater concern by legislators to preserve the minimal conditions of survival of the defendant. Cândido Rangel DinamarcO4 explains that “personal assets necessary to survival, dowry, assets belonging to offspring, and assets belonging to others” were excluded from financial liability. Although quite incipient, there was a clear move toward the system of impossibility to levy that is currently established. That is, there was an evolution in Roman law toward a humanization of execution5.

It is not an overstatement to say that impossibility to levy of assets is the last measure toward humanization of execution, such as to preserve the dignity of the debtor. This measure is guided by the principle of preservation of the defendant to ensure the minimal conditions for a dignified survival6. However, the specific limits7 on impossibility to levy are treated differently, depending on the historical, economic, political and cultural aspects of each country8.

Currently, the ability to levy a determined financial amount raises questions about the degree to which Brazilian legislators have inflated the protection of debtors in evident and unjust detriment to creditors, who also possess fundamental rights. Evidently, we do not defend the levy of assets that would truly impair the dignity of the debtor, but we do question whether there is not a current exaggeration in the humanization of levy, where it is has been forgotten that the creditor also holds the right to timely and effective judicial protection, assuring protection of his or her dignity.

In addressing human dignity and the possibility of conflicts that may occur in the protection of the dignity of different individuals, Ingo Wolfgang Sarlet9 questions to what point dignity – in the condition of fundamental right and principle – can be considered absolute, impervious to any sort of restriction and/or relativization. According to SARLET10,

On the other hand, it can easily be seen that the problem arises when the referred to intersubjective dimension of human dignity is taken seriously. As all people are equal in dignity (even if they do not behave equally dignified) and there is thus an obligation of reciprocal respect (of each person) to others’ dignity (in addition to the obligation of respect and protection of public authorities and society), we can imagine the hypothesis of a direct conflict between the dignities of different people, establishing- also in these cases – a practical agreement (or harmonization), that necessarily entails hierarchization (as Juarez Freitas argues) or the balancing (as Alexy prefers) of the assets in conflict, in this case, of the asset (dignity) concretely attributed to two or more owners. In this same line – although with quite particular implications – is situated the hypothesis of an agreement in which personal dignity could yield in the face of more relevant social values, namely when the aim is to protect the life and personal dignity of the other members of a certain community.

We understand that the establishment of restrictions on levy11 is already characterized as a balanced judgment of the involved interests, opting for the mitigation of the plaintiffs’ rights in order to protect the defendant. Nevertheless, hypotheses of impossibility to levy may not be based on particular concrete cases, which may lead to a disproportion between the restriction of one fundamental right and the protection of another.

It is up to the Judicial Power to control the application of rules of levy. In cases where there is a disproportional application, it must correct this disproportion, preserving the fundamental right of the creditor to timely and effective protection and, consequently, the preservation of his or dignity. The widely supported solution entails the respect of constitutional protection of the different rights found in the framework of the constitution, seeking harmonization of precepts that lead to differing, often contradictory, results12. Addressing this issue, Ingo Wolfgang SARLET espouses13:

In this sense, we cannot forget, in agreement with Alexy, that even the principle of human dignity (by dint of its very principiological condition) becomes subjected to a necessary relativatization, in contrast to the equal dignity of third parties, and, nevertheless, in the scope of an axiological hierachization, its prevalence in conflict to other principles and constitutional rules, even in terms of fundamental rights must be conceded. In effect, we must recognize, in line with Kloepfer, that even while holding dignity as the supreme value of judicial order, the postulate of its absolute intangibility does not follow, in and of itself and necessarily. Thus, faced with the need to solve the concrete case of tensions in relationships between people who are equally dignified, we cannot dismiss a balanced judgment (which seems the most correct) or a hierarchization, which, clearly can never result in the sacrifice of dignity, and this an effectively absolute dimension of dignity, in the condition of intrinsic and non-negotiable value of each human being, and as such, must always be recognized and protected, thus being, and specifically in this sense, imponderable.

The lessons of Portuguese legal scholar José Carlos Vieira de AndRade14, apply aptly to this problem. According to him, there will be conflict anytime the constitution simultaneously protects two values or assets in concrete contradiction. The problem is how to solve the conflict between the assets, when both are effectively protected as fundamental rights. The solution cannot be solved by resorting to the idea of a hierarchical order of constitutional values. It is not always (or perhaps it is never) possible to establish a hierarchy between assets to sacrifice less important ones15.

On the other hand, we cannot ignore the fact that, in cases of conflict, the constitution protects the different values or assets at stake and it is illicit to simply sacrifice one of them in benefit of the other. According to Andrade16, to settle the conflict “we also cannot resort to a theory of fundamental rights”. According to him17,

Sometimes, these theories predominantly accentuate a certain aspect (liberty, democracy, socialness) and will tend to settle the conflict in favor of the right that fits the preferred category. However, the order of constitutional values is not hierarchical and, thus, does not allow abstract solutions based on the claims which the different fundamental rights promote.

Therefore, a solution for the conflict should respect the constitutional protection of different rights or values, preserving the integrity of the Constitution, harmonizing as best as possible the divergent precepts. Solution of the conflict cannot affect the essential core of any fundamental right protecting values or assets that are different.

However, this principle of practical agreement as a criterion to settle conflicts should not be accepted or understood as an automatic regulator. Rather, it should be put into effect through a criterion of proportionality in the distribution of the costs of conflict. On the one hand, it is necessary that the sacrifice of each of the constitutional values allows for the safeguarding of the others (otherwise, it is not a true conflict)18. In this sense, Ingo Wolfgang SARLET19 claims:

In all of the cases… it is necessary to perform a balancing (and, above all, a hierarchization) of all the assets at stake, in order to efficiently protect human dignity, applying the principle of proportionality, which, in turn, is equally connected in this perspective to the principle of dignity.

On the other hand, a strict application of the idea of proportionality requires the choice among a number of ways to settle the concrete conflict in terms of causing the least amount of loss to each of the values at stake, according to their weight in the situation (in terms of intensity and extension with which the constitutionally conceded protection of these values will be affected)20.

The issue of conflicts of rights or values depends, therefore, on an evaluation of weight, where we must seek and justify the solution that is most in line with the set of constitutional values, in the face of specific situations or forms of exercising rights. In this sense, some categorical affirmations have been made to the effect that only principles can be objects of balancing21. Humberto Ávila22, to the contrary, argues that there can also be balancing among rules23:

It has become commonplace to hear categorical affirmations regarding the distinction between principles and rules. Norms are either principles or rules. Rules do not need nor can be objects of balancing; principles need to and must be balanced. Rules institute definitive duties, regardless of the factual and normative possibilities; principles institute preliminary duties, which depend on the factual and normative possibilities. When two rules clash, one of the two is invalidated, or an exception should be made for one of them in order to settle the conflict. When two principles clash, both surpass the conflict, maintaining their validity, and the person who applies the principle must decide which has the greatest weight. In effect, as for the doctrine, in general, it is understood that there is an interpretation of rules and a balancing of principles and this study critiques this separation, aiming to demonstrate the capacity to also balance rules.

ÁVILA’s position is important to this study, precisely because it is necessary to perform a balancing among the different rules that constitute limitations to levy, in order to provide timely and effective judicial protection to the fundamental right of the creditor. Addressing this issue, Marcelo Lima Guerra24 espouses:

The first finding that arises in the interpretation is that unleviability of assets of the debtor imposed by law consists of a restriction of the fundamental right of the creditor to judicial action. [...] the restrictions on fundamental rights are not, in principle, illegitimate. However, they should be geared toward protecting other fundamental rights and may, for that reason, be subject to a judicial revision to verify, in the concrete case, whether the limitation, although motivated by another fundamental right, brings about a full comprehension of the restricted fundamental right.

Based on the premises laid out above, the next section deals with the applicability of the principle of proportionality in the scope of civil procedure, aiming toward preservation of the fundamental rights of both creditor and debtor.

2.1 The principle of proportionality25 as a form of ensuring the fulfillment of fundamental rights of the creditor and debtor in the scope of civil procedure

The principle of proportionality arises in the XVIII Century, stemming from the idea of limitation of power. It is considered a measure with supra positive value to the Rule of Law and aims to ensure the domain of individual freedom from administrative interference. At that time, the criterion of proportionality included the administrative and penal areas26. In this sense, it is at the root of Enlightenment thought, being mentioned by Montesquieu and Beccaria (both of whom addressed proportionality of punishment in relation to the crimes)27.

In the XIX Century, the idea of proportionality becomes a general principle of the right of police, within administrative law, manifesting itself in the need for a legal limitation of the arbitrariness of the executive power28. According to Dimitri Dimoulis and Leonardo Martins29,

The idea of proportionality is rooted in contemporary constitutional judicial thought. Developed originally, in judicial-dogmatic molds that are relevant here, by the jurisprudence of the German Federal Constitutional Court in the decade of 1959, it was readily accepted by the German doctrine. In recent decades, it has been exported to many parts of the world, including Southern Europe, which determined to a large degree, but not exclusively, the way it was received in Brazil and other countries in Latin America. It also has been applied in the jurisprudence of international courts.

However, this principle was only elevated to a constitutional status in the XX Century, in Germany30.

According to Willis Santiago Guerra Filho31,

[...] the principle of proportionality, understood as the mandate of optimization of maximal respect for every fundamental right, in a situation of conflict with another (others), insofar as is factually and judicially possible, can be divided into three “partial principles” (Teilgrundsätze): “principle of proportionality in the strict sense” or “maxim of balancing” (Abwägungsgebot), “principle of appropriateness” and “principle of demandability” or “maxim of the softest means” (Gebot des mildesten Mittels)32.

It is not an overstatement to claim that the principle of proportionality is of fundamental importance in the settling of conflicts, providing a set of criteria that allow the judicial professional to solve the conflict between fundamental rights, through a balancing of the circumstances involved in the concrete case. However, it can be seen that this principle – in the breadth that it takes on when considering its separate elements – does not represent a substantive, material criterion of the decision, but serves only to establish a procedural directive, a process of the material search for a decision, with justice clearly applied to the concrete specific case33. This procedural character of the principle of proportionality is demonstrated in the relation of subsidiarity, which can be seen in its separate elements34.

The principle of proportionality, in the broad sense, is broken down into three elements: the principle of proportionality in the strict sense, the principle of conformity or appropriateness of means and the principle of necessity. Although there is not an express rule in Brazilian law35 for this principle36, the Brazilian doctrine37 reproduces and endorses this triple characterization of the principle of proportionality38. Addressing the three elements of proportionality, Humberto ÁVILA explains39:

This apparent clarity regarding the circumstances of the postulate of proportionality requires an exam of appropriateness, of necessity and of proportionality in the strict sense. The means must be appropriate to reach the ends. But, what does appropriateness consist of, exactly? The means chosen should be necessary among those available. But, what does necessary mean? The advantages of using the mean should outweigh the disadvantages. But, in what sense of advantage does this mean and relative to what and to whom should they be analyzed? All things considered, the three exams involved in the application of proportionality are only apparently uncontroversial. Their investigation reveals problems that need to be clarified, at the risk of proportionality, which was conceived to combat the practice of arbitrary acts, ending up as subterfuge in the very practice of these acts.

Thus, proportionality depends on the interweaving between legal assets and an intersubjectively controllable relation between means and ends. If there is not a properly structured means-end relation, the exam of proportionality will be meaningless, falling into a void40.

2.1.1 Principle of conformity or appropriateness of means

The previous discussion applies as well to the idea that public interest must be ensured through measures that are appropriate to the subjacent ends being striven for. This requires utilization of means whose efficacy will contribute to the gradual obtainment of the end.

The control of acts of public power (legislative and executive), which should address the relation of mean-end appropriateness, presupposes an investigation and proof of its aptitude and conformity to the ends that spurred its adoption41.

The question arises: what does it mean for a mean to be appropriate to the achievement of an end? From what perspective should the relation of appropriateness be analyzed? What sort of control over decisions adopted by the Public Power should be instituted? According to Humberto ÁVILA42, the answer to the first question passes through the analysis of the relation between the different means available and the desired end, which involves three aspects: quantitative (intensity), qualitative (quality) and probabilistic (certainty). Addressing this subject, he argues43:

In quantitative terms, one mean may promote an end less, equally or more than another mean. In qualitative terms, one mean may promote an end worse, equally or better than another. In probabilistic terms, one mean may promote an end with less, equal or more certainty than another. This means that the comparison between means will not always lead to a choice that maintains a constant level (quantitatively, qualitatively or probabilistically), as occurs in the comparison between one weaker and another stronger mean, one worse and another better or between one less certain and another more certain in the promotion of an end.

[...]

This leads to the next important question: does the administrator or legislator have the duty to choose the most intense, the best or the most certain mean to an end, or should the choice of mean ‘simply’ promote the end? The administrator and legislator have the obligation to choose a mean that simply promotes the end.

Considering the premises mentioned above, it is necessary to understand what it means to adopt an appropriate measure. A measure will generally be appropriate if it serves as an instrument to promote the end. Appropriateness should be evaluated at the time the mean is chosen and not later, when the choice is evaluated44.

In the scope of civil procedure, a measure will be adequate if it ensures the dignity of both the debtor and the creditor.

2.1.2 Principle of necessity

The main idea of this principle is that the freedom of one individual should be restricted as little as possible, which involves a verification of alternative means to those initially chosen by the legislative or executive power45. This is what is understood, for example, by the German Federal Constitutional Court, which formulated the maxim that the end cannot be reached by another mean that affects the individual less, removing its character as a principle of the norms of fundamental rights46. The option selected by the legislative or executive power must be shown to be the best and only viable possibility to obtain certain ends with the least cost to the individual: observation of the cost-benefit relation in every political-legal decision, in order to preserve, insofar as possible, citizens’ rights47. In this sense, according to Humberto ÁVILA48, the exam of necessity involves two steps:

[...] first, the exam of the equality of appropriateness of means, to verify whether the alternative means promote the end equally; second, the exam of the less restrictive mean, to examine whether the alternative means restrict to a lesser degree collaterally affected fundamental rights.

Thus, verifying the least restrictive mean should indicate the most temperate mean. In the hypothesis of general norms, the necessary mean is that which is mildest or least grave with regard to collateral fundamental rights, for the average case. Even in general acts, it is possible, except in exceptional cases, and based on the postulate of reasonableness, to override the general rule in order to observe the obligation to minimally consider the personal conditions of the affected people49.

Addressing the principles of necessity and appropriateness, Willis Santiago Guerra Filho50 explains that they “establish, within that which is factually possible, that the chosen mean will serve to reach the established end, proving to be ‘appropriate’. In addition, this mean should be shown to be ‘demandable, which means that there is no other equally efficient and less damaging to fundamental rights”.

In the scope of civil procedure, it may be necessary to flexibilize the hypotheses of impossibility to levy established in the legislation, in order to preserve the dignity of the creditor, an argument that will be elaborated in the second part of this paper.

2.1.3 Principle of proportionality in the strict sense

The principle of proportionality in the strict sense establishes a correspondence between the end to be achieved by a normative provision and the mean employed, which should be the best legally possible mean. In other words, above all, the essential core of fundamental rights cannot be damaged51, with intolerable disrespect toward human dignity52. According to Humberto ÁVILA53, “the exam of proportionality in the strict sense requires the comparison between the importance of achieving the end and the intensity of the restriction of fundamental rights”.

This principle is confused with the pragmatics of balancing or the law or balancing. This stems from an analysis of the space of semantic discretion present in the legal system. It consists of a requirement for balancing of results to the appropriateness between means and ends. The issue that must be evaluated is how and to what degree balancing can be justified in law. In a balancing, “the task of the legal scholar is precisely the ‘materialization’ of values. It is up to them, for that reason, to carry out a valuation with the help of ‘value-oriented thinking’ [...].”54

The nature of directives of valid principles provides an optimization of the legal and factual possibilities for a given situation. Optimizing means a relativization of the judicial possibilities of a given principle, considering the weight of the colliding principle in a concrete case. The decision regarding a conflict requires a balancing55 from the moment that it is verified56.

Balancing of results is a method for legal development and the elaboration of the principle of proportionality arises precisely from the rationalization of concrete solutions for conflicts of law and assets, as is witnessed in judicial practice57.

In the mandate of balancing, that is, in the principle of proportionality in the strict sense, there is a balancing between the judicial possibilities, while in the other two maxims of the principle of proportionality (necessity and appropriateness) the factual possibilities are considered. Balancing can be fundamental not only in principles of fundamental rights, but in principles of Rule of Law or, even, in judicial practice or in the concept of justice58.

In this sense, it is essential to ask the following questions: does the degree of importance of the promotion of the end justify the degree of restriction caused to fundamental rights? Are the advantages gained by promoting the end proportional to the disadvantages cause by adopting the mean? Humberto ÁVILA59 explains that the answers to these questions reveal the complexity of the problem “the judgment of that which is considered to be an advantage and that which is considered a disadvantage depends on a strongly subjective evaluation. Normally, a mean is adopted to reach a public finality, related to the collective interest (protection of the environment, protection of consumers) and its adoption causes restrictions to the fundamental rights of citizens as a collateral effect”.

In the scope of civil procedure, as an expression of the principle of proportionality in the strict sense, the restrictions to levy cannot be relativized to the point of only pertaining to the essential fundamental rights of the debtor.

3 Preservation of fundamental rights of the debtor in civil procedure and the flexibilization of rules that contemplate impossibility to levy as a form of preserving the dignity of the creditor

The principle of proportionality, in line with the discussion above, is one of the alternatives to address the problem involved in the conflict between fundamental rights of the debtor and creditor in civil procedure. The greatest points of tension are found in the scope of impossibility to levy, which is based on the protection of fundamental rights of the debtor.

In this section, we will address two hypotheses of impossibility to levy, whose reach is susceptible to critiques, considering the potential restriction posed to the fundamental rights of the creditor: the impossibility to levy part of the revenue from the product of labor and the impossibility to levy high-value family assets.

3.1 Levy of a portion of revenues earned with the product of labor in brazilian law: from the civil procedure code of 1973 to the civil procedure code of 2015

The Civil Procedure Code of 1973 contemplated article 649, line IV, impossibility to levy revenues earned with the product of labor, except in the case of levy to pay alimony. The jurisprudence that was built throughout the period of the 1973 Civil Code (CPC), given the dominance of impossibility to levy of these respective incomes60 – with the exception expressly made to alimony - evolved in the sense of allowing levy of a portion of the salary in other hypotheses61.

The New Civil Code (Law 13.105/15) establishes in article 833, § 2, the possibility of levy of values that are greater than 50 (fifty) times the minimum monthly wage. We deem this to be a very small move forward in the new legislation, considering that the value corresponding to 50 minimum salaries is a very high value in comparison to the average salary of Brazilians (in the year 2016, it corresponded to practically R$ 40,000.00, whereas the minimum salary was approximately R$ 800.00). This value is much greater than the minimum necessary for survival.

Clearly, the norms that restrict patrimonial liability – impeding the levy of certain assets, in the case under analysis, earnings from the product of labor – are constitutional. The restriction on levy of certain assets is a traditional procedural technique and is widely accepted in our society. But these rules can be mitigated, if their application is shown to be disproportional and unreasonable62.

Based on the arguments of Humberto ÁVILA and in this concrete case related to the limitation, stipulated in the 2015 Civil Code, to the levy of part of earnings from the product of labor, except for cases involving debts of alimony, or in cases where the value is greater than 50 (fifty) times the minimum monthly wage, we understand that it is possible to perform a balancing between the constitutional rules that substantiate the preservation of the fundamental rights of the debtor, by limiting levy of earnings, with the constitutional principle that ensures the fundamental right to temperate and effective judicial protection63 – which is an expression of article 5, lines XXXV and LXXVIII of the Federal Constitution, founded on the principle of human dignity. In this sense, the Judicial Power has a fundamental role in carrying out this mitigation, based on the principle of proportionality, by allowing levy of values lower than 50 (fifty) times the minimum wage, as was established previously in the jurisprudence that was formed out of the 1973 Civil Code.

As explained above, in accordance with the principle of appropriateness, it is necessary to seek the exact correspondence between means and ends, so that the means employed will be logically compatible with the ends, so as to be perfectly suitable to achieve these ends. We deem the levy of part of earnings from labor to be appropriate to provide the ends desired, which will mean that both the fundamental rights of the debtor and of the creditor will be preserved.

On the other hand, in accordance with the principle of necessity, the use of a certain mean should be limited strictly to that which is necessary to achieve the desired end and, in the case of there being more than one factually possible mean, the mean that would cause the least damage should be chosen, in other words, the least restriction to other fundamental rights. In order for this principle to be implemented, we reason that the portion of earnings to be seized should not be greater than is necessary to preserve the fundamental rights of the debtor.

In relation to the principle of proportionality in the strict sense, it is necessary that there be a global evaluation of the situation and specifically of the correspondence between means and ends, in order to establish the advantages and disadvantages of the means, in the light of other ends involved. In the hypothesis of levy of part of earnings from the product of labor, there will be a disadvantage for the debtor, who will lose part of his or her earnings, and an advantage for the creditor, without the former sacrificing his or her fundamental rights. There will be a restriction of the rights of the debtor on behalf of the fundamental right of the creditor to temperate and effective judicial protection.

Legislation in other countries deals with the issue of impossibility to levy of earnings from the product of labor in a different way than the Brazilian legislation. Without a doubt, provisions from foreign legislations preserve the fundamental right of the creditor much more, which will be demonstrated in the next topic.

3.2 Levy of a portion of earnings from the product of labor in foreign law

The provision of levy of part of earnings from the product of labor is not a new concept in foreign law. For example, article 738, lines 1 and 5 of the Portuguese Civil Procedure Code of 201364 allow levy of part of earnings:

Art. 738. [...]

1. Two thirds of the net wages, salaries, retirement pension or any other social privilege, insurance payout, accident indemnization, life income or any other type of payment that ensures the subsistence of the respondent.

[...]

5. In the levy of money or bank account balance, the global value corresponding to the national minimum salary is unleviable or, in the case of alimony obligation, the quantity equivalent to the entirety of the pension of the non-contributory regime.

In Belgium, provisions on impossibility to levy are found in article 1.409 of its Code fiduciaire, which establishes minimum and maximum limits for levy, respectively € 827.96 and € 1,070.90, in addition to two intermediate values: € 827.96 and € 979.18. In this sense, if the salary of the respondent is less than € 827.96, none of it can be levied, whereas is the salary is over € 1.070,90, any amount that exceeds this value by 100% can be levied.

The first intermediate values applies to situations in which the salary is between the minimum (€ 827.96) and the value of € 887.46, in which case the legislation allows the levy of 20% of the total. The second intermediate value applies to salaries between € 887.46 and 979.18, in which case 30% of the total may be levied. Finally, when the salary of the respondent is between € 979.18 and the maximum (€ 1,070.90), 40% of the total value may be levied.

In Spain, similar to Portugal and Belgium, levy of earnings is allowed under certain conditions. Article 607 of the Spanish Civil Code establishes absolute impossibility to levy when earnings are lower than the minimum wage. Salaries above the minimum wage are subject to levy based on the following scale: earnings that exceed 1, 2, 3, 4 and 5 times the minimum wage are subject to levy of 30%, 50%, 60%, 75% and 90%, respectively.

Countries that adopt a common law system also allow levy of a portion of earnings. In the United States, the judge is given judicial discretion in the arbitration of percentage of earnings that can be levied, considering the minimum necessities of the respondent and their family in the concrete case. Nevertheless, there is a federal law that limits this discount, requiring that the debtor maintain 75% or 30 times the value of the minimum wage, whichever is greater65.

In foreign law, the limit to impossibility to levy is much lower than the amount of 50 (fifty) times the minimum wage established in the Brazilian legislation. Certainly, the cost of life in the countries mentioned here is much higher than that in Brazil. In that sense, the dignity of the debtor will be preserved even with a limit to levy of earnings lower than 50 times the minimum salary. Indeed, the Brazilian legislation can be said to be excessive in the provision of impossibility to levy of earnings that are less than 50 times the minimum wage and this excess clearly impairs the preservation of the dignity of the creditor.

3.3 Relativization of impossibility to levy of high-value family assets – established in law 8.009/90 – based on the principle of proportionality

Protection of family assets in the Brazilian legislation derives historically from the 1939 Texas Homestead Law. It arose after a phase of unbridled development that led to widespread speculation. The illusion of an easy profit led to exploitation involving very high-value loans, which resulted in the financial crisis between the years of 1937 and 1939. The Homestead Law was created during this period of acute economic crisis in order to protect the homes of debtors66.

Clearly, the concern on the part of the legislation to preserve the fundamental right of the debtor to housing in Law 8.009/90 is commendable67. However, the law makes no distinction between properties of high and low value, between a mansion and a shack. The jurisprudence of the Supreme Court of Justice68 is passive in terms of the literal interpretation of Law 8.009/90 and does not make any distinction in terms of value of the property in the determination of impossibility to levy of family assets69

HIGH-VALUE PROPERTY – IRRELEVANCE, FOR THE PURPOSE OF IMPOSSIBILITY TO LEVY - INDEX OF MONETARY CORRECTION – JURISPRUDENTIAL DIVERGENCE – DEMONSTRATION – INEXISTENCE –MOTION FOR CLARIFICATION- FINE - IMPOSSIBILITY – PROCRASTINATORY INTENTION – ABSENCE - PRECEDENT 98/STJ – APPEAL PARTIALLY HEARD AND, TO THIS EXTENT, PARTIALLY GRANTED.

I – The jurisprudence of this Court has already indicated that it is possible to constitute panels or chambers for rulings by a majority of summoned judges, as long as the summons is carried out within legal parameters and following provisions established by the Federal Constitution.

II – The issues related to the existence of a hidden defect, as well as to pursuing execution in the manner that is least onerous to the debtor, were not the object of debate or deliberation in the appellate decision, despite the opposition of a motion for clarification, which resulted in the Precedent 211/STJ.

III – It is possible to levy a portion of the property, characterized as a family asset, when it is possible to dismember it without it altering its characterization as such. Precedents.

IV – The assessment of the nature of the family asset, sustained by Law n 8.009/90, being an issue of public order and not subject to preclusion, comprises a dynamic court. And this circumstance is shaped by basic principles of human rights, including that of human dignity, one of the fundamental rights of our Democratic Rule of Law, in terms of article 1, line III, of the Federal Constitution.

V – For the family asset to be recognized as unleviable, in accordance with article 1 of Law n 8.009/90, it suffices that the property serve as the debtor’s family residence, regardless of the value of the asset.

VI - Article 3 of Law n 8.009/90, which establishes exceptions to the rule of impossibility to levy, does not raise any indication related to the value of the property. Therefore, it is irrelevant, for the effects of levy, that the property be considered luxurious or of a high standard. Precedent of the Fourth Panel.

VII – With regard to the monetary correction, it must be recognized that, special appeals by ‘sub-item c’ are not allowed without the demonstration of the circumstances that identify the confronted cases.

VIII – The motions for clarification were opposed with the intention of prequestioning, prohibiting, by logic, the imposition of a procrastinatory penalty, in the terms provided in the Precedent 98/STJ.

IX – Special appeal partially heard and, to this extent, partially granted.

Clearly, the position of the Supreme Court is to preserve the dignity of the debtor, ensuring his or her fundamental right to housing, which is one of the guiding principles of the Democratic Rule of Law70.

This ruling of the Supreme Court is evidently incoherent in relation to the protection of the fundamental right to housing. If, on the one hand, the fundamental right to housing is explicitly preserved in this situation, when the court71 is asked to provide a judgment regarding the levy of a residential property of the lease guarantor – applying the same guidelines as the Federal Supreme Court72– it ruled affirmatively, failing to protect this fundamental right.

If the Supreme Court flexibilized the fundamental right to housing in the hypothesis contemplated in article 3, line VII of Law 8.009/90, why not do the same for the impossibility to levy of high-value family assets? It is not an overstatement to claim that in terms of the possibility of alienation of a high-value family asset, the situation is much less onerous than the literal application of article 3, line VII of Law 8.009/90, since, in the latter case, there is an evident sacrifice of the right to housing of the guarantor (debtor), with which we disagree. In the hypothesis considered in this analysis, if the family asset is alienated, but a portion of the value is maintained by the debtor to acquire property of a lower value, then there is no sacrifice to the fundamental right to housing.

We believe the incoherence of the Supreme Court decisions to be fully inappropriate and an evident source of injustice73. The Civil Code of 2015 does not contemplate impossibility to levy of family assets, which continues to be regulated by Law 8.009/90. In this sense, article 1 of Law 8.009/90 provides unjustifiable privileges to certain debtors. We are certainly not protesting the protection of the fundamental right to housing, but against the excesses that result from of a broad interpretation. In this sense, we agree with Ávila74, that “the work of the interpretation, be it as judge or legal scholar, is not merely to describe the previously existing meaning of provisions. Rather, it is to construct these meanings. Therefore, it is also not plausible to accept the idea that the application of Law involves a subsumption between concepts available before the process of application”75.

Obviously, decent housing denotes fulfillment of the minimal functions of a residence, and not the maintenance of the lifestyle the debtor had before becoming indebted. Therefore, we believe that high-value residential properties should be alienated and a certain quantity should be maintained by the debtor in order to acquire a property of lower value, which would preserve the fundamental right to housing. Even if the standard of living undergoes a significant reduction, the substitution of a high-value property for a lower-value property ensures the preservation of the dignity of the debtor and their family. In contrast, the dignity of the creditor is preserved. In this case, the three elements of proportionality will be fulfilled. It is appropriate to alienate a high-value family asset inasmuch as the dignity of the creditor is preserved. On the other hand, this measure is necessary whenever the debtor does not possess other leviable assets. Otherwise, the fundamental rights of the creditor will be sacrificed. Finally, the principle of proportionality in the strict sense will be fulfilled, in that the fundamental rights of both creditor and debtor are preserved.

Preservation of family housing cannot denote the preservation of injustice and the disparity between the value protected by restrictions on levy and the right of the creditor to judicial protection. In this sense, we view the flexibilization of impossibility to levy of family assets as possible. Indeed, the theory of fundamental rights allows, in cases of conflict, the flexibilization of hypotheses of impossibility to levy established by law. Impossibility to levy results in a restriction to the fundamental right of the creditor to temperate and effective judicial protection. Clearly, restrictions to fundamental rights are illegitimate. However, nothing impedes a judicial review of such restrictions. Addressing this issue, Marcelo Lima Guerra76 explains:

As we have seen, restriction to fundamental rights are not, in principle, illegitimate. They should be, however, based on the fulfillment of other fundamental rights and, for that reason, subject to a judicial revision to verify, in the concrete case, whether the limitation, even though motivated by another fundamental right, brings about an excessive constraint to the restricted fundamental right. As has been said repeatedly, the restriction to a fundamental right is legitimate if: (a) performed to the exact measure of that which is essential for fulfilling the other fundamental right and if (b), in the concrete case, it is established that the other fundamental right has a greater weight than the right being restricted.

If on the one hand, impossibility to levy of a high-value family asset protects the fundamental right of the debtor to housing, it, without a doubt, restricts the fundamental rights of the creditor. Therefore, we believe that a balancing between the two rights is important, considering that the fundamental right to housing should give way to other rights that are just as relevant, and in the specific case, to the fundamental right of the creditor to temperate and effective judicial protection, allowing the levy of high-value residential properties77. The issue of greater or lesser restriction to levy of the debtor’s assets lies within the scope of conflicting fundamental rights. For this reason, any abstract solution with an absolute validity imposed on this conflict between constitutional rights is incompatible with the supremacy of the Constitution78. This is because such a solution to conflicting fundamental rights is radically against the nature of the fundamental right norms as mandate of optimization and will always implicate, at some point, nothing less than the negation of validity of one of the norms in conflict79.

4 Final considerations

The conflict between fundamental rights of the debtor and creditor in civil procedure is a reality that must be addressed from a constitutional perspective. The conflict should be settled based on the principle of proportionality, taking into account its three elements. In the scope of civil procedure, a measure will be appropriate when it allows for the protection of the dignity of both debtor and creditor. In that sense, it may be necessary to flexibilize the hypotheses of impossibility to levy established in the legislation in order to preserve the dignity of the creditor. On the other hand, as an expression of the principle of proportionality in the strict sense, the limitations to levy cannot be relativized to the point of restricting the essential core of fundamental rights of the debtor.

In terms of monthly earnings from the product of labor, a value lower than 50 (fifty) times the minimum wage can, in our opinion, be the object of levy, because in this case, the apparent disadvantage that would result to the debtor would impede the sacrifice of fundamental rights of the creditor. In this hypothesis, the rights of the debtor are restricted in order to preserve the fundamental rights of the creditor to temperate and effective judicial protection. Regarding this aspect, the existent provisions in foreign law preserve both the fundamental rights of the debtor and creditor.

In relation to high-value family assets, we also believe they should be subject to levy, again to preserve the rights of both debtor and creditor. The preservation of housing cannot denote the preservation of injustice and a disparity between the value protected by the restriction and the right of the creditor to temperate and effective judicial protection.

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