A aplicação dos princípios da proporcionalidade, da razoabilidade e da boa-fé nas astreintes

Abstract

This cientific study is about coercive penalty institute, present in the “Code of Civil Procedure”, and application of the principles of fairness, proportionality and good faith. First of all, the structure of the obligation relationship was analyzed to point out and conceptualize the obligations that could be object of coercive penalty. After that, a historic panorama of Brazilian law regarding to coercive penalty was related, indicating its origin on the Consumer Defense Code and the procedure reform due to law number 8.952 from 1994 – 461 article refers to do or not to do obligations – and 10.444 from 2002 – 461-A article refers to deliver obligation – Included in the Code of Civil Procedure. Moving forward, was analyzed the nature of the penalty in Brazilian law system and the suitability hypothesis. Also, was analyzed the parameters for its application, indicating the amount of the penalty and its incidence periods. Then, was studied the possibility of changing amounts and incidence periods of the coercive penalty, based on the application of the principles of fairness, proportionality and good faith. Finally, a summary comment was made about the Project of New Code of Civil Procedures – Law Project number 8.046 from 2010 – indicating the changes of the subjects related in this paper