TAX INJUNCTION PROCEDURE BEFORE THE GENERAL POWER OF CAUTION AND THE GENERAL EXECUTIVE CLAUSES: LIMITS TO THE SUBSIDIARY APPLICATION OF THE CIVIL PROCEDURE CODE

Abstract

This writing deals with the potentially existing dialogic relationship between the tax injunction procedure, ruled by Law no. 8,397/1992, and the new legal provisions that, since the Civil Procedure Code of 2015 came into force, have challenged the traditional paradigms of civil execution. Forged in an extremely open texture, the precepts brought by the new Code to ensure executive protection place the effective satisfaction of the executor above the predictability of court decisions, allowing judges to adopt atypical precautionary and executive measures of induction, coercion and subrogation over the debtor's behaviour. Grouped in what has been termed "general power of caution" and "general executive clauses", such atypical measures are intended to ensure greater effectiveness in complying with the enforcement obligation, when the orthodox typical or named measures (seizure, apprehension, fine, removal of persons and things, protest, etc.) are not, in the judge's view, the most appropriate for the case. In this dialogue among such diverse legal sources, including the Fiscal Enforcement Law (Law n.º 6.830/1980), important postulates which guide the Democratic State of Law are invoked and end up leading the discussion. It is in this dialectic tension that the article addresses issues such as legal security (including decisional predictability), legality, due process (and its corollaries of the contradictory and broad defense), effectiveness of jurisdictional provision, typicality of procedural forms and their instrumentality.

Keywords

• tax enforcement
• tax principles
• public finance
• general power of caution
• general executive clauses
• atypical measures
• subsidiary application