A Teoria da Ponderação de Alexy e o Depósito na Penhora de Percentual do Faturamento: Uma Proposta de Superação da Súmula 319 do Stj

Abstract

This work has intended to demonstrate how the Alexy´s Weight Formula can contribute to overcome the crystallized understanding of the STJ Precedent 319, validating it, through a rational practical speech, a juridical decision requiring the company administrator, being a formal partner or not, an assumption of the deposit on billing percentage of attachement. To achieve this objective, initially, through a theoretical and descriptive method, it was performed a critical exposition of the reasons to decide a previous founding of the higher rule under discussion with the guide principles of the process and the juridical activity of the contemporary constitutionalism with doctrinal precepts and the Superior and Federal Supreme court's own judgments. Following through the deductive method, it was defended the need to re-size the principle of the strict legality at the current constitutional order, in which principles become a rule of the law, having them as the primary source of obligations and duties. As the principle foundation of this duty, it was called the atypical principle of the executive, as a corollary of fundamental rights to an effective and adequate protection and constitutional forbidden clause the non liquet as well as the cooperation and procedural faithful objective. As the conclusion, in order to avoid decisionism and validate in a rational manner the ruling intervention of the executed business administrator fundamental rights, it was performed the analytical exposure of Alexy´s Weight Formula in comparison with the studied particularities of the the case.