JUDICIAL ANTICIPATORY TAKING OF EVIDENCE IN SEARCH OF ASSETS: TOWARDS A MORE EFFECTIVE AND RATIONAL ENFORCEMENT

Abstract

The present article aims to analyze the adequacy of que judicial anticipatory taking of evidence, in order to search for assets in debtor’s patrimony. This proposition allows the creditor to consciously decide which action should be taken therefore: (a) make a proposal of agreement according to the real debtor’s patrimony; (b) give up the fruitless intention to propose the judicial enforcement of the debt; or (c) propose, conscious and responsibly, the judicial enforcement of the debt. This study aims to present a contribution de lege lata to improve the effectiveness of judicial enforcement in Brazil, avoiding the mistaken proposal of judicial enforcement with the main and (actually) preparatory aim of finding out whether there are assets in the debtor’s patrimony. The proposition of the judicial anticipatory taking of evidence in search of assets, according to its regulation brought by the Brazilian Civil Procedure Code of 2015, provides an important instrument de lege lata to reach this goal, while the creation of a pre-enforcement extrajudicial process (PEPEX) is discussed in Brazil, following the successful Portuguese experience.

Keywords

• judicial anticipatory taking of evidence
• enforcement
• effectiveness
• efficiency
• search of assets