A cognição sumária na execução de título executivo extrajudicial como consectária do processo justo

Abstract

The purpose of this dissertation is to analyze the cognition exercised by the judge at the beginning of the execution of an extrajudicial title and before the outbreak of executive activities, even without manifestation by the executed person. This is because, due to the abstract effectiveness of the enforceable title, the cognition in the execution was relegated when the defendant's opposition to embargoes or the manifestations of the executed. By approaching the theme of cognition at the beginning of the execution process, we sought to demonstrate that the execution judge is not an automaton, as well as that the execution is not only composed of executive acts, so that the exercise of cognition is necessary soon at the start of the enforcement process. For this, the types of cognition were analyzed and which would be applicable at the beginning of the executive process. In this sense, in the light of fair process, it was demonstrated that summary cognition would be sufficient to fulfill this proposed role. Some examples are also presented that the summary cognition at the beginning of the executive process will imply the provision of a fairer and more effective judicial protection, not only for the interests of the creditor, but in compliance with the guarantees of the debtor, as a consequence of the fair process (art. 5, item LIV, CF/88).