Defesa condicionada : a (in)constitucionalidade da exigência de garantia do juízo para oposição de embargos à execução no âmbito dos juizados especiais cíveis.

Abstract

This monographic study addresses the requirement of securing the judgment as a condition for the admissibility of objections to enforcement proceedings within the scope of Brazilian Small Claims Civil Courts. Its objective is to analyze the compatibility of this requirement with the principles that guide the procedural microsystem established by Law No. 9,099/1995 and with the constitutional guarantees of adversarial proceedings, full defense, and access to justice. In this context, the research problem consists of determining whether conditioning the exercise of defense on the prior securing of the judgment represents a legitimate mechanism of procedural rationalization or constitutes an obstacle incompatible with the inclusive purpose of the Small Claims Courts. The research adopts the deductive method, through bibliographic, legislative, doctrinal, and case law analysis, with particular attention to the enforcement of extrajudicial enforceable instruments and to the constitutional foundations of procedural law. The results indicate that, although the requirement of securing the judgment is justified by concerns related to procedural effectiveness and celerity, its absolute application may prevent economically vulnerable defendants from accessing their main instrument of defense, producing effects incompatible with the purposes that legitimize the very institution of the Small Claims Courts. It is therefore concluded that a rigid interpretation of this requirement reveals tension with the constitutional order and calls for a hermeneutic solution capable of harmonizing the effectiveness of enforcement proceedings with the protection of adversarial proceedings and full defense.