OS EQUÍVOCOS DO POSICIONAMENTO DO SUPERIOR TRIBUNAL DE JUSTIÇA SOBRE A EXIGÊNCIA DE PRÉVIA GARANTIA DO JUÍZO NOS EMBARGOS À EXECUÇÃO FISCAL

Abstract

The Federal Law 6.830/80 – titled Tax Enforcement Law (LEF) – regulates the procedure of judicial collection of the Active Debt of the Public Treasury and establishes the subsidiary application of the Brazilian Code of Civil Procedure (CPC) to the case. However, the intense transformations undergone by the Brazilian legal system since its publication have led to several controversies about the interpretation and applicability of some of its provisions, many of which continue to be debated by doctrine and jurisprudence. One of them refers to the article 16, paragraph 1, of the LEF, which establishes the prior court guarantee as a requirement for the admissibility of the embargoes to the tax enforcement. In the midst of doctrinal and jurisprudential discussion about the matter, the Superior Court of Justice (STJ) established the maintenance of the requirement, even against the contrary provision embodied in the article 914, caput, of the Brazilian Code of Civil Procedure of 2015 (CPC/15). In this context, the present academic work aims to clarify the misconceptions regarding the arguments used by the Court to substantiate the existence of the commandment established by the article 16, paragraph 1, of the LEF, and to mitigate its applicability in the face of the debtor's equity hyposufficiency, based, respectively, on the decisions handed down in the judgment of REsp 1.272.827/PE and REsp 1.487.772/SE. With this, the research demonstrates that the understanding of the Court about the subject does not find support in the current constitutional and procedural norms, not being the one that best serves the interests of the Public Treasury or the private individual.