Pre-enforceability and Pre-executory Verbiage

Analysis of the Legality and Constitutionality of Article 20-B of Law 10.522/2002

Abstract

The article 20-B into Law 10.522/2002 allow the National Treasury to endorse and to make unavailable goods and rights bounds to arrest or seizure if the debtor is notified of the registration in active debt and does not make the payment in the within five days. Against this mechanism, Direct Actions of Unconstitutionality were filed. The purpose of this article is to analyze the formal and material compatibility of Article 20b with the legal framework. Therefore, it is based on the premise that the device inserted two legal norms to the legal order: the rule of pre-executory registration and the rule of pre-enforceability. Next, the compatibility of each one with article 146 of the Federal Constitution is analyzed. In the end, it is verified that the standard of pre-executory registration is compatible with it and that the norm of pre-executional unavailability indirectly offends him. Subsequently, the compatibility of both rules is analyzed with the principle of due legal process, the right to private ownership and the right to free business initiative. It is concluded that the pre-executory endorsement standard is materially compatible with the Constitution and that the rule of pre-executional unavailability violates the principle of due legal process, as well as disproportionately restricting the right to property and free initiative. At the end, it is proposed to the partial recognition unconstitutionality with a reduction of the text of item II of article 20-B of Law 10.522/2002, so that the expression “making them unavailable” is excluded from the legal system.