Impactos do Marco Legal das Garantias (lei nº 14.711/2023) e a salvaguarda dos direitos fundamentais dos devedores vulneráveis na ordem econômico-jurídica: crescimento socioeconômico sustentável

Abstract

Law No. 14.711/2023, known as the Legal Framework for Guarantees, introduced important changes to the guarantee system in Brazil. Among the main changes are the private search and seizure procedures, the extrajudicial execution of credits secured by mortgage and the extrajudicial execution of real estate collateral subject to a creditors' contest. The contested articles, inserted by the Legal Framework for Guarantees, deal with the consolidation of property in cases of default in fiduciary alienation contracts, allowing the consolidation of property before the registry of titles and documents, the procedure for extrajudicial search and seizure of movable property, and the extrajudicial execution of credits secured by mortgage, including the possibility of public auction and the appropriation of the property by the creditor. The Legal Framework for Guarantees aims to speed up procedures for enforcing guarantees in credit operations, modernizing and adapting the guarantee system to the needs of the credit market, boosting the use of assets as collateral and reducing operating costs. Recently, the Federal Supreme Court endorsed the validity of out-of-court enforcement of fiduciary collateral sale clauses, authorizing financial institutions to repossess properties in cases of borrower default, without the need for judicial intervention. The Association of Brazilian Magistrates (Associação dos Magistrados Brasileiros – “AMB”) has filed a Direct Action of Unconstitutionality (Ação Direta de Inconstitucionalidade - “ADIN”) against Law No. 14.711/2023. The ADIN specifically questions articles 6, 9 and 10 of the aforementioned law, which deal with private search and seizure procedures, extrajudicial execution of credits guaranteed by mortgage and extrajudicial execution of real estate collateral subject to a creditors' contest. The main arguments put forward by the AMB to support the unconstitutionality of these rules include violation of the principle of due process of law, offense to the principle of reserved jurisdiction, violation of the right to property and the inviolability of privacy, violation of the principle of legal certainty and violation of the principle of equality. Finally, the discussion on the unconstitutionality of these provisions also involves the analysis of possible collateral effects, considering the impact on the business environment, the financial market and the legal certainty of contractual relations