CPC_artigo_01_final_Pandelo_Jr

CPC/2015, juristocracia e os limites da criatividade

judicial: efetividade da execução, segurança jurídica

e autocontenção hermenêutica

CPC/2015, juristocracy, and the limits of judicial creativity

CPC/2015, juristocracia y los límites de la creatividad judicial

Domingos Rodrigues Pandelo Junior

Universidade Federal de São Paulo, São Paulo, Brasil

https://orcid.org/0000-0001-7033-0804

E-mail: pandelo@hotmail.com

Doutorado em ciências do movimento humano e reabilitação pela UNIFESP e mestrado em

Administração Pública pela Fundação Getúlio Vargas. Professor da Fundação Getúlio Vargas

(FGV/IDE).

RESUMO

O artigo examina a tensão entre efetividade executiva e segurança

jurídica  no  âmbito  do  Código  de  Processo  Civil  de  2015.  Parte-se  da premissa de
que  o  CPC/2015  foi  concebido  não  apenas  como  instrumento  de  aceleração
procedimental,  mas  como  projeto  de  racionalização,  coerência,  integridade  e
previsibilidade  decisória.  A  partir  de  uma  reconstrução  teórica  do  fenômeno  da
juristocracia, sustenta-se que a interpretação judicial para além da literalidade é, em
certos  contextos,  legítima  e  até  necessária,  sobretudo  diante  da  textura  aberta  da
linguagem  jurídica  e  da  maior  velocidade  das  transformações  sociais  em
comparação  com  o  tempo  do  processo  legislativo.  Essa  ampliação  interpretativa,
contudo,  encontra  limites  quando  deixa de concretizar cláusulas abertas e passa a
neutralizar critérios objetivos e escolhas normativas expressamente positivadas pelo
legislador. O problema é analisado a partir de dois recortes centrais: a utilização de
medidas  executivas  atípicas  com  fundamento  no  art.  139,  IV,  do  CPC,  e  a
controvérsia  acerca  da  penhora  de  verbas  salariais  inferiores  a  cinquenta  salários
mínimos para pagamento de dívidas não alimentares, à luz do art. 833, IV e § 2º, do
mesmo  diploma.  Defende-se  que  a  efetividade  da  execução  é  um  valor
constitucionalmente  relevante,  porque  o  credor  também  é  titular  de  tutela
jurisdicional  adequada, tempestiva e útil; porém, a busca pela satisfação do crédito
não  autoriza  a  erosão  de  direitos  fundamentais  do  executado  nem  a  substituição
judicial da ponderação legislativa. Conclui-se que a legitimidade do Poder Judiciário,
em  um  Estado  Democrático  de  Direito,  depende  de  autocontenção  hermenêutica,
fundamentação rigorosa e respeito às consequências práticas da decisão.

Palavras-chave:

CPC/2015; juristocracia; execução civil; medidas executivas

atípicas; impenhorabilidade salarial.

ABSTRACT

This article examines the tension between executive effectiveness and

legal  certainty  under  the  2015  Civil  Procedure  Code  (CPC/2015).  It  posits  that  the
CPC/2015 serves as a project for rationalization, coherence, and predictability, rather
than  mere  procedural acceleration. Within the framework of "juristocracy," the study
argues  that  judicial  interpretation  beyond  literalism  is  often  necessary  due  to  the
open  texture  of  legal  language  and  rapid  social  change.  However,  this  interpretive

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expansion  finds  its limit when it neutralizes objective criteria and express legislative
choices.  The  analysis  focuses  on  two  core  issues:  the  application  of  atypical
enforcement  measures  (Art.  139,  IV)  and  the  controversy  surrounding  the
garnishment  of salaries below fifty minimum wages for non-alimony debts (Art. 833,
IV).  While  enforcement  effectiveness  is  a  constitutionally  protected  right  of  the
creditor  to  timely  and  useful  judicial  protection,  it  must  not  erode  the  debtor's
fundamental  rights  or  substitute  for  legislative  balancing.  The  study  concludes  that
judicial  legitimacy  in  a  Democratic  State  of Law requires hermeneutic self-restraint,
rigorous  legal  reasoning,  and  due  regard  for  the  practical  consequences of judicial
decisions.

Keywords:

CPC/2015; juristocracy; civil enforcement; atypical enforcement

measures; salary immunity from attachment.

RESUMEN

Este artículo examina la tensión entre la efectividad ejecutiva y la

seguridad  jurídica  en  el  Código  de  Procedimiento  Civil  de  2015  (CPC/2015).  Se
parte  de  la  premisa  de  que  el  CPC/2015  es  un  proyecto  de  racionalización,
coherencia  y  previsibilidad,  y  no  solo  de aceleración procesal. Bajo el concepto de
"juristocracia", se sostiene que la interpretación judicial extraliteral es necesaria ante
la  textura  abierta  del  lenguaje  jurídico  y  las  rápidas  transformaciones  sociales.  No
obstante,  esta  expansión  interpretativa  tiene  límites:  no  puede  neutralizar  criterios
objetivos ni opciones normativas expresamente positivadas. El problema se analiza
mediante dos ejes: el uso de medidas ejecutivas atípicas (art. 139, IV) y el embargo
de salarios inferiores a cincuenta salarios mínimos para deudas no alimentarias (art.
833,  IV).  Se  defiende  que,  aunque  la  efectividad  de  la  ejecución  es  un  valor
constitucional  y  un  derecho del acreedor a una tutela útil, no autoriza la erosión de
derechos fundamentales del ejecutado ni la sustitución de la ponderación legislativa.
Se  concluye  que  la  legitimidad  judicial  en  un  Estado  Democrático  de  Derecho
depende  de  la  autocontención  hermenéutica,  una  fundamentación  rigurosa  y  el
respeto a las consecuencias prácticas de los fallos.

Palabras clave:

CPC/2015; juristocracia; ejecución civil; medidas ejecutivas

atípicas; inembargabilidad salarial.

Recebido em:

abril de 2026

Aceite em:

julho de 2026

Publicado em:

agosto de 2026

1. Introduction

Contemporary legal theory lives with a permanent tension between normative

stability and the adaptation of the legal order to social transformations. There is no

minimally sophisticated legal system that can be reduced to the mechanical

application of legislative literalism, as though the language of the law were capable

of exhaustively anticipating all future cases; nor is there a rule-of-law state that

remains stable when the normative text is converted into a mere starting point for

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entirely free decisional reconstructions. Between rigid formalism and unlimited

plasticity lies the central problem of legal interpretation: how to preserve the

democratic authority of the law without fossilizing the law itself and, at the same time,

how to interpret the legal order in an evolutive manner without dissolving the very

idea of legality (Hart, 2007; Dworkin, 2014; Streck, 2018).

In Brazil, this tension acquired new intensity after the 1988 Constitution (Brasil,

1988). The expansion of the catalogue of fundamental rights, the centrality of

constitutional adjudication, and the institutional strengthening of the courts produced

a profound transformation in the understanding of the judge's role. Jurisdiction

ceased to be conceived merely as an activity of subsumption and came to be

perceived, often, as an instance of constitutional concretization, including in

scenarios of legislative omission, deliberative slowness, and accelerated social

change. This movement generated undeniable civilizational gains on several fronts,

but it also created fertile ground for the expansion of judicial protagonism to an

extent capable of straining the separation of powers and legal certainty (Hirschl,

2007; Ramos, 2015; Barbosa, 2019).

It is within this framework that the phenomenon of juristocracy, or, in a less technical

usage, “jurisprudocracy”, must be situated, understood as the progressive

displacement of the center of normative production from representative bodies to the

courts. The concept is particularly useful for understanding situations in which the

Judiciary does not limit itself to resolving controversies in light of positive law, but

begins, by interpretive means, to undertake tasks involving the substantive revision

of legislative choices. Rather than mere jurisdictional application of the law, one then

observes a kind of institutional reconfiguration of normative authority (Tate; Vallinder,

1995; Hirschl, 2007; Britto; Barbosa, 2023).

Civil procedure is especially fertile ground for this debate. CPC/2015 was designed

not only to make judicial relief faster, but also to strengthen the system's coherence,

integrity, and predictability. Articles 489, paragraph 1, 926, and 927 clearly reveal this

commitment to the public rationality of judicial decisions. It is not enough merely that

decisions be rendered; they must also be rendered in a way that is controllable,

coherent, and institutionally justifiable (Brasil, 2015; Ávila, 2021).

At the same time, Brazilian civil enforcement continues to be one of the major

bottlenecks of judicial protection. The National Council of Justice recorded that, even

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with record productivity in 2024, the Judiciary closed that year with 80.6 million

pending cases. Tax enforcement remains an especially sensitive component of this

stock: although recent efficiency policies reduced its relative weight, CNJ data still

identify it as a central source of congestion and delay (Conselho Nacional de Justiça,

2024a; Conselho Nacional de Justiça, 2025). Considering this scenario, the pressure

for greater enforcement effectiveness is entirely understandable. The problem,

however, is that creditor protection, however relevant it may be, does not, by itself,

authorize the indiscriminate relativization of the debtor's guarantees or the judicial

rewriting of objective normative criteria.

This study begins precisely from that tension. Its aim is to examine, from a

theoretical and dogmatic perspective, the limits of judicial creativity within CPC/2015.

To that end, four axes will be addressed: the conceptual reconstruction of

juristocracy and its difference from mere judicialization; the relationship between

social change, legislative slowness, and evolutive interpretation; the crisis of

enforcement effectiveness and the system's controlled opening to atypical means;

and, finally, the paradigmatic case of the attachment of salaries below fifty minimum

wages. The central hypothesis is that judicial interpretation beyond literalism is

legitimate when it operates in open normative zones but becomes institutionally

problematic when it replaces clear legislative balancing with variable judicial criteria.

Methodologically, the research adopts a qualitative, theoretical-dogmatic, and

critical-reconstructive approach. It is based on the systematic interpretation of

CPC/2015, on specialized legal scholarship, and on selected case law from the STF

and the STJ. The precedents examined were chosen according to three criteria:

institutional relevance, thematic pertinence to the tension between enforcement

effectiveness and legal certainty, and argumentative density regarding articles 139,

IV, 489, paragraph 1, 805, 833, IV and paragraph 2, 926, and 927 of CPC/2015. The

study does not claim to provide an exhaustive quantitative mapping of national case

law; rather, it reconstructs paradigmatic decisions capable of revealing the main

interpretive vectors currently in dispute.

2. Juristocracy, separation of powers, and legal theory

The literature on juristocracy has as its unavoidable landmark the work of Ran

Hirschl. In his formulation, the global rise of judicial power is explained not merely by

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an abstract strengthening of legality, but by a political-institutional rearrangement in

which elites, state actors, and power structures shift sensitive decisions to

constitutional courts and superior courts, turning them into stable centers of

normative production and arbitration of major public conflicts (Hirschl, 2007). Even

before Hirschl, Tate and Vallinder had already described the “global expansion of

judicial power” as one of the most striking characteristics of late constitutionalism,

associating it with the broader phenomenon of the judicialization of politics (Tate;

Vallinder, 1995).

It is important, however, to distinguish between concepts that are close, but not

equivalent. Judicialization denotes, in a broad sense, the displacement of socially

relevant conflicts to the judicial sphere. Judicial activism refers, in more dogmatic

terms, to an expansive posture of judicial action beyond the limits traditionally

recognized for the function of judging. Juristocracy, in turn, is a structural category: it

is not limited to the decisional style of a judge or court, but points to a deeper

alteration in the balance among institutions, in which the Judiciary comes to occupy

a space of normative centrality previously reserved for politically responsive bodies

(Ramos, 2015; Barbosa, 2019; Britto; Barbosa, 2023).

In the Brazilian debate, Claudia Maria Barbosa observes that juristocracy cannot be

analyzed merely as a symptom of constitutional maturity. In contexts of judicial

hypertrophy, the phenomenon may generate dysfunctional effects: the weakening of

democratic deliberation, the undue displacement of political responsibility, and the

production of insecurity arising from excessive interpretive variability (Barbosa,

2019). In the same direction, Melina Carla de Souza Britto and Claudia Maria

Barbosa stress that the expansion of judicial protagonism may fuel institutional

reactions, crises of legitimacy, and backlash movements, precisely because

jurisdiction ceases to be perceived only as a guardian of the law and comes to be

seen as a competing forum for the formulation of substantive political choices (Britto;

Barbosa, 2023).

From the standpoint of legal theory, the problem is not in recognizing that judges

interpret. That is an elementary datum. The problem lies in determining to what

extent interpretation can still be understood as a juridically conditioned activity. Hart

showed, in his classic analysis of the open texture of language, that there are

penumbral zones in which the application of law requires evaluative judgment; but

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Hartian theory itself does not eliminate the distinction between easy and hard cases,

nor does it transform every decision into a purely discretionary choice without ties to

the system (Hart, 2007).

Dworkin, in turn, reacted against the discretionary paradigm by arguing that legal

decisions must be constructed in light of the integrity of law, that is, as part of a

coherent institutional practice in which principles and precedents confer continuity

and justificatory density upon interpretation. The right answer, in this framework, is

not to be confused with the judge's personal preference, but with the best interpretive

effort to reconstruct law as a shared institutional practice (Dworkin, 2014).

In the Brazilian context, Eros Roberto Grau warned forcefully about the risks of the

undue expansion of judicial subjectivity. His criticism is not directed at interpretation

as such, but at the emptying of the institutional mediations that distinguish applying

the law from producing it. In a similar vein, Lenio Streck insists that legal

hermeneutics cannot be converted into authorization for judicial arbitrariness

disguised as principled reasoning. For him, the difference between text and norm

does not legitimize interpretive “anything goes”; on the contrary, it imposes

hermeneutic responsibility and fidelity to the institutional horizon of democratically

produced law (Grau, 2018; Streck, 2018).

The question, therefore, is not to defend a return to naive positivism, nor to

romanticize the figure of the creative judge. The decisive point is to recognize that

the openness of legal language and the historical dynamism of law do not abolish

the need for institutional limits. There is a legitimate difference between interpreting

to concretize normative possibilities already contained in the system and interpreting

to replace, according to one's own evaluative judgment, choices that the legislature

explicitly made. The first movement belongs to the normal life of law; the second

approaches the terrain of juristocracy.

3. Social change, legislative time, and interpretation beyond literalism

A simplistic criticism of judicial protagonism ignores an elementary datum of legal

experience: society changes at a much faster pace than legislation. The legislative

process is deliberately slower because democracy requires debate, composition,

negotiation, and majority-building. That slowness is not merely a defect; it is also a

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guarantee. Yet it produces an inevitable consequence: social reality often outstrips

legal wording, requiring the interpreter to reconstruct the norm in a manner

compatible with constitutional principles and with the historically situated meaning of

legal institutions.

This observation explains why law cannot be reduced to mere grammatical exegesis.

There are institutions whose social meaning changes over time, and whose

normative reading must follow this transformation if law is not to become incapable

of responding to concrete life. In such cases, interpreting beyond literalism does not

mean violating the law, but preserving its normative force within a changed social

context. The challenge, however, lies in distinguishing between legitimate updating

and judicial replacement of the legislature.

Recognition of this interpretive space, however, does not eliminate the need for

criteria. The semantic openness of language is not distributed evenly throughout the

legal system. There are rules intentionally drafted with open texture, clauses that

demand concretization, and concepts whose indeterminacy is an integral part of their

structure. But there are also rules containing objective, quantified, and explicitly

delineated criteria. The more the text reveals a clear legislative choice, the narrower

the room for judicial substitution should be.

The distinction can be operationalized through a set of dogmatic indicators:

normative texture, legislative density, the presence of quantifiers, clauses of

openness, and the legislative history or structure suggesting deliberate openness or

closure. Low-density provisions, drafted with open-ended language and without

numerical parameters, tend to invite stronger judicial concretization. High-density

provisions, especially those containing explicit thresholds, percentages, time limits,

or exceptions, tend to narrow the legitimate space for judicial replacement. This is

not a mechanical formula, but it provides a controllable hermeneutic test: the more

explicit the legislative criterion, the greater the burden of justification for any judicial

departure from it.

This point is decisive for the debate developed in this article. CPC/2015 did not

ignore the limits of legislative foresight; it internalized them. The Code deliberately

combines techniques of openness and closure. On the one hand, it admits flexibility

in provisions such as article 139, IV, which authorizes all inductive, coercive,

mandatory, or subrogatory measures necessary to ensure compliance with judicial

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orders. That provision is structurally open and demands functional concretization by

the judge. On the other hand, the Code establishes objective criteria in provisions

such as article 833, paragraph 2, which defines the conditions under which salary

amounts may be attached by means of an express numerical threshold. Treating a

quantified rule as if it were a general clause, or projecting onto it the same logic

applicable to open-ended procedural management provisions, distorts the very

architecture of the Code.

Hence, social change, though relevant, cannot be invoked as a generic key for

judicially correcting every law deemed inadequate, outdated, or disproportionate. In

the context of CPC/2015, the argument from legislative slowness cannot be invoked

indiscriminately, as if every perceived inadequacy of the statutory text authorized

judicial correction. Where the legislature anticipated change by creating open

clauses, judicial creativity is part of the statutory design. Where it chose closure

through quantified criteria, judicial self-restraint is also part of that design. Without

that distinction, every exercise of interpretation becomes a latent exercise of

legislation.

4. CPC/2015 as a project of effectiveness with legal certainty

Reading CPC/2015 merely as a code of efficiency unduly reduces it. The statute

represents, at once, a commitment to effectiveness and to legal certainty. It was

enacted in a context in which the Brazilian legal system sought not only to accelerate

proceedings, but also to reduce jurisprudential volatility, increase the quality of

reasoning, and strengthen the normative authority of judicial precedents. This dual

commitment is evident throughout the Code's architecture.

Article 489, paragraph 1, is eloquent in treating as unreasoned any decision that

merely invokes generic arguments, abstract principles, or normative formulas without

demonstrating their relevance to the concrete case. Articles 926 and 927, in turn,

establish the duty of the courts to standardize their case law and keep it stable,

integral, and coherent, while also providing for the observance of qualified

precedents. There is, therefore, a clear legislative intention to contain arbitrariness

and to treat predictability as a value inherent in due process (Brasil, 2015).

Contemporary scholarship on legal certainty, especially that of Humberto Avila,

makes it possible to understand why this design is so relevant. Legal certainty is not

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to be confused with immobility; it is a normative condition that allows the addressee

of law to foresee, with a reasonable degree of trust, the consequences attached to

conduct and judicial decisions. It is, in this sense, a prerequisite for the exercise of

freedom, for economic organization, and for the legitimacy of state power itself

(Ávila, 2021).

In civil procedure, insecurity carries an even higher cost. Citizens do not litigate

merely to obtain an abstract declaration; they litigate to solve a concrete practical

problem. If, in addition to the uncertainty intrinsic to conflict, the process itself

becomes a source of added unpredictability through oscillating or discretionary

interpretations, judicial protection loses its own practical usefulness. The problem is

aggravated when the areas most exposed to such oscillation are precisely those

involving stronger state coercion, such as enforcement.

The crisis of enforcement effectiveness, however, exerts strong pressure in the

opposite direction. In environments of low credit satisfaction, the system tends to

seek increasingly incisive tools to overcome resistance, detect assets, and induce

payment. This pressure is understandable, but it must not obscure the fact that

effectiveness and legal certainty are not antithetical values. A system that satisfies

credits at the cost of dissolving objective legal boundaries may appear efficient in the

short term but produces systemic erosion of trust and equality in the medium and

long term.

5. The crisis of civil enforcement and the creditor's right to effective judicial

protection

A false dilemma must be avoided. Criticism of juristocracy does not authorize

indifference to enforcement ineffectiveness. The creditor is also a holder of the

fundamental right to adequate judicial protection. Constitutional process cannot be

understood as a system designed solely to protect the debtor against coercion; it

must also ensure that those who obtain a judicially or extrajudicially enforceable title

can, within reasonable limits and by constitutional means, effectively obtain

satisfaction of their rights.

Available institutional data confirms the magnitude of the problem. According to the

CNJ, even with record productivity in 2024, the Judiciary still ended that year with

80.6 million pending cases. Tax enforcement proceedings stood out as one of the

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main bottlenecks: they accounted for approximately 26% of pending cases, with a

congestion rate of 73.8% and an average duration of 7 years and 7 months.

Although these figures reflect an improvement when compared with the preceding

report, they still reveal a severe deficit in the practical realization of credits (Conselho

Nacional de Justiça, 2025).

The institutional response to this scenario has not been exclusively normative; it has

also manifested itself in the improvement of asset investigation tools. The

replacement of Bacenjud by Sisbajud, the integration of systems, and the expansion

of electronic mechanisms for locating assets are examples of a strategy focused on

making enforcement more effective without necessarily intensifying personal

restrictions. The CNJ itself recorded a significant increase in the rates of conversion

into judicial deposits after the introduction of Sisbajud, which indicates that technical

and managerial improvements may often be more effective than expansively

reinterpreting legal limits (Conselho Nacional de Justiça, 2024b).

Enforcement effectiveness, therefore, is a constitutionally relevant value, but it is not

an absolute value. Civil enforcement remains, in principle, patrimonial in nature, not

personal. Its purpose is not to punish the debtor for moral failure, but to satisfy the

credit through legitimate expropriatory or coercive means. This premise is crucial

because it shows that not every measure that increases pressure on the debtor is,

for that reason alone, consistent with the Constitution or with the structure of the

Code.

6. Atypical enforcement measures: legal basis, constitutionality, and functional

limits

Article 139, IV, of the CPC assigns the judge the power-duty to determine all

inductive, coercive, mandatory, or subrogatory measures necessary to ensure

compliance with judicial orders, including in claims whose object is the payment of a

sum of money. The provision is one of the clearest examples of a general clause of

procedural management in the Brazilian system. It opens normative space for

functional judicial creativity and seeks to overcome the chronic ineffectiveness of

typical enforcement measures. From the outset, therefore, the legislature clearly

opted for controlled openness.

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That openness, however, never meant a license for arbitrariness. The

constitutionality of article 139, IV, was recognized by the Federal Supreme Court in

ADI 5.941. According to the Court, atypical enforcement measures are, in principle,

compatible with the Constitution, provided they do not disproportionately affect

fundamental rights and are applied with due reasoning. The STF thus acknowledged

the validity of the legal opening but did not transform it into unrestricted authorization

for personal restrictions detached from the concrete purpose of credit satisfaction

(Supremo Tribunal Federal, 2023).

The STJ, in turn, progressively developed infraconstitutional parameters for

application. As early as 2019, the Third Panel held that, in the absence of signs of

asset concealment, the suspension of a driver's license or seizure of a passport

could not be justified, because in such a scenario these measures would not be

coercive toward credit satisfaction, but merely punitive. The distinction is extremely

important: a coercive measure seeks to influence conduct in order to facilitate the

result of enforcement; a punitive measure simply imposes suffering or deprivation as

a sanction for non-payment (Superior Tribunal de Justiça, 2019).

The same vector appeared, with an important nuance, in 2022, in HC 711.194/SP. In

that case, the STJ did not fix an abstract maximum duration for atypical coercive

measures; rather, it indicated that their temporal validity must be assessed in light of

the concrete case and of their continuing aptitude to overcome the debtor's

resistance. The point reinforces a temporal-functional limit: even without a

pre-established term, a restriction that loses its causal connection to credit

satisfaction ceases to be an enforcement instrument and approaches an improper

form of civil punishment (Superior Tribunal de Justiça, 2022).

The stabilization cycle culminated, in 2026, in the STJ's adoption of a precedential

thesis. According to the Second Section, in civil enforcement proceedings governed

exclusively by the CPC, the judicial adoption of atypical means is permissible

provided that, cumulatively, the principles of effectiveness and the least burdensome

means to the debtor are weighed; the measure is applied primarily on a subsidiary

basis; the decision contains reasoning tailored to the specificities of the case; and

adversarial process, proportionality, reasonableness, and the temporal duration of

the restriction are observed (Superior Tribunal de Justiça, 2026a).

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These limits make it possible to formulate a conceptual distinction essential to this

study: the difference between legitimate coercion and illegitimate punishment.

Atypical enforcement measures are constitutionally defensible insofar as they

function as indirect pressure mechanisms aimed at inducing conduct that may

facilitate satisfaction of the credit. They lose legitimacy when they become

deprivations devoid of practical aptitude to produce that result. In other words, what

justifies the measure is not its severity, but its functional link to enforcement efficacy.

From this follows a decisive criterion. Suspending a driver's license, seizing a

passport, blocking cards, or imposing another unnamed measure may, in theory, be

constitutionally admissible, but only if there are concrete elements indicating that

such restriction may reasonably contribute to uncovering assets, overcoming

strategic resistance, or inducing payment. If the debtor simply lacks attachable

assets and there are no signs of concealment, the measure becomes a mere

symbolic punishment. It ceases to serve the credit and comes to serve only the

demonstration of state force.

For that reason, effectiveness by itself is not enough as a legitimating criterion. The

atypical enforcement measure must be subsidiary, reasoned, causally connected to

the intended result, temporally delimited, and materially proportionate. Without that

set of requirements, article 139, IV, ceases to operate as a controlled opening clause

and begins to function as a gateway to discretionary personal restrictions

incompatible with a constitutional civil process.

7. Salary immunity from attachment and the risk of judicial substitution of

legislative balancing

The discussion concerning the attachment of salary to pay non-support debts shifts

the debate to another normative category. Unlike article 139, IV, which clearly adopts

an open structure, article 833, IV and paragraph 2, of the CPC contains a more

closed and objectively delineated legislative choice. As a rule, salary, wages,

earnings, pensions, retirement benefits, and other amounts of an alimentary nature

are immune from attachment; the law expressly allows attachment, outside support

obligations, only with respect to amounts exceeding fifty monthly minimum wages.

From the standpoint of legal doctrine, this difference is crucial. When the legislature

opens the system, as in article 139, IV, it transfers to the judge a space for prudential

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concretization. When it establishes a quantified criterion, however, it has already

carried out a balance between conflicting values and transformed the result of that

balance into an explicit rule. In the first case, interpretation fills in the norm; in the

second, substitution of the rule threatens to replace the legislative balance itself.

In 2023, the STJ's Special Court admitted the relativization of salary immunity from

attachment even in relation to non-support debts and even when the debtor's income

was below fifty minimum wages, provided that an amount deemed sufficient to

preserve the debtor's and the debtor's family's dignified subsistence was maintained.

The reasoning indicated that the removal of the word “absolutely” from the caput of

article 833 would have rendered the immunity relative and therefore open to

balancing by the judge in the concrete case (Superior Tribunal de Justiça, 2023).

The position favorable to broader relativization must be addressed in its strongest

version. Its argument is not merely pragmatic. It rests on the idea that enforcement

ineffectiveness compromises access to justice, that salary immunity cannot protect

bad-faith resistance or asset shielding, and that the rule should be applied through

proportionality so that the creditor's right to useful judicial protection is not emptied.

In this view, preserving a concrete amount sufficient for dignified subsistence would

allow partial attachment without destroying the debtor's existential minimum

(Superior Tribunal de Justiça, 2023).

Precisely for that reason, the 2023 precedent should not be treated as a mere

manifestation of judicial voluntarism. It responds to a genuine institutional deficit: a

creditor who holds an enforceable title may still face years of fruitless enforcement,

while the debtor continues to receive income that, in practical terms, may be

sufficient to absorb a limited attachment. Its strongest contribution is to recall that

access to justice also includes the creditor's right to useful relief. Its structural

weakness, however, is the transfer to each judge of the power to redefine, without a

legislative threshold, the level of income that must remain immune from attachment.

The theoretical problem is not in recognizing the relevance of the existential

minimum. On the contrary: protection of alimentary income and of the material

conditions of freedom is an essential requirement of constitutional process. The

difficulty lies elsewhere: in article 833, paragraph 2, the legislature has already

translated a political-normative judgment into objective language. The question,

therefore, is whether the Judiciary may, under the banner of concretizing the

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existential minimum, judicially reduce the level of protection that the legislature itself

expressly established.

This does not mean denying the practical difficulties generated by the legal criterion.

It is indeed possible to maintain that the threshold of fifty minimum wages is high in

light of the Brazilian socioeconomic reality and that, for this very reason, it reduces

the practical utility of the rule for many creditors. But that criticism, however plausible

it may be, is primarily a criticism to be directed at the legislature. If the objective

criterion is deemed socially inadequate, the most institutionally coherent path is

legislative amendment, not its informal judicial reduction.

The referral of Theme 1.230 to the repetitive appeals system, publicized by the STJ

in January 2024, confirms the density of the problem. The court recognized the need

to establish a binding precedent capable of standardizing the matter, precisely

because the controversy had already generated instability and uncertainty in case

law (Superior Tribunal de Justiça, 2024a). The official repetitive-themes page

identifies the submitted question as the definition of the reach of the exception

provided in article 833, paragraph 2, of CPC/2015, in relation to salary immunity from

attachment for the payment of non-support debts, including when the debtor's

income is lower than fifty monthly minimum wages; at the time of this revision, the

matter was still listed as under judgment (Superior Tribunal de Justiça, 2026b). This

reinforces the need for caution: until a binding thesis is defined, the judicial reduction

of the statutory threshold should not be justified by assumptions not expressly

supported by the cited source or by the case record.

Whichever solution is eventually adopted in Theme 1.230, the controversy reveals

institutional trade-offs rather than a perfect answer. Maintaining the statutory limit

maximizes legal certainty, legislative deference, and predictability, but may leave

some creditors without practical satisfaction against middle- or high-income debtors.

Reducing the threshold by judicial interpretation may increase enforcement

effectiveness in concrete cases, but it risks eroding the existential minimum and

intensifying second-order uncertainty. Replacing the numerical threshold with a

judicially determined existential minimum offers flexibility, yet it is precisely the model

most exposed to satellite litigation, unequal outcomes, and fluctuating evidentiary

standards. Legislative amendment is slower, but it would locate the recalibration of

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the balance between creditor and debtor in the institution democratically authorized

to redefine general rules.

The difficulty is aggravated because the concept of the existential minimum,

although normatively relevant, cannot function as an empty rhetorical label. The

LINDB itself, after the 2018 reform, came to require that decisions grounded in

abstract values consider their practical consequences. That means that a judicial

decision invoking human dignity and the existential minimum to reduce a legislatively

fixed objective threshold must present empirical, social, and economic support

considerably more robust than a simple intuitive assertion about what is “enough” to

live with dignity (Brasil, 2018).

Consequentialist reasoning, therefore, requires more than the assertion that a given

percentage is moderate or that a particular amount appears sufficient. If a court

reduces the statutory protection of salary income, it should explain, based on

concrete elements in the record, how the remaining amount preserves housing, food,

health, transport, family support, and ordinary conditions of subsistence. Otherwise,

the invocation of dignity and practical consequences becomes only apparent

reasoning: it weakens the statutory criterion without demonstrating that the

alternative threshold protects the debtor's existential minimum.

The absence of such grounding generates two simultaneous risks. The first is

material: the attachment may strike precisely the segment of income indispensable

to housing, food, transport, health, and family maintenance. The second is

institutional: objective law gives way to variable thresholds defined by judicial

subjectivity, which intensifies asymmetry among cases, unpredictability, and the

erosion of equality before the law. What should be solved by statutes depends on the

judicial composition of the moment.

The practical consequence is a second-order uncertainty. Parties, lawyers, and lower

courts no longer know whether the statutory threshold will operate as an objective

rule, as a rebuttable presumption, or merely as a starting point for case-by-case

balancing. This affects settlement incentives, increases satellite litigation over the

debtor's living standard, and transfers to evidentiary disputes about subsistence a

question that the statutory text attempted to resolve through a quantified criterion.

The result may be more enforcement pressure in individual cases, but at the cost of

systemic predictability.

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The contrast with another precedent of the STJ itself helps to clarify the point. In

2024, the court held, in a repetitive appeal, that salary and savings up to forty

minimum wages, as a rule, may not be attached to pay court-awarded attorneys'

fees, because such fees are not equivalent to a support obligation for purposes of

the legal exception. This shows that the court itself, in another context, preserved a

more deferential reading of the objective legislative criteria, refusing to expand

exceptions beyond the text (Superior Tribunal de Justiça, 2024b).

The doctrinal consequence is clear. If the legislature deliberately chose to fix the

threshold of fifty minimum wages as an objective line of reinforced protection,

judicially replacing that line with a lower threshold based on flexible evaluations of

subsistence is no longer merely interpreting the law. It is materially reconfiguring the

content of the rule. And that is precisely where the risk of juristocracy arises in the

sphere of civil procedure.

8. Final considerations

The debate on CPC/2015 and juristocracy cannot be conducted in simplistic terms.

Not every expansive judicial action is illegitimate, and not every appeal to legal

certainty should be read as a defense of blind formalism. Contemporary law requires

interpretation, historical sensitivity, and responsiveness to social change. But it also

requires clear distinctions between interpretation and legislation, between controlled

openness and objective closure, between constitutionally guided creativity and

institutional substitution of the legislature.

CPC/2015 was not conceived as a statute of unrestricted judicial creativity.

Alongside its commitment to effectiveness, the Code explicitly affirms the values of

coherence, integrity, reasoned decision-making, and predictability. This means that

the legitimacy of judicial innovation depends not only on the material goodness of the

result, but also on the path taken to achieve it and on the degree of fidelity

maintained toward the democratic and normative structure of the legal system.

Regarding atypical enforcement measures, the conclusion is one of constitutional

and legal compatibility, provided that their legitimate conditions are preserved:

subsidiarity, adequate reasoning, practical aptitude for credit satisfaction,

proportionality, temporal delimitation, and respect for fundamental rights. Outside

these conditions, the atypical measure ceases to be an instrument of effective

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jurisdiction and becomes a mechanism of punishment disconnected from the

patrimonial nature of enforcement.

As for the attachment of salaries below fifty minimum wages for the payment of

non-support debts, the situation is different. Here, there is not an open-ended clause

to be concretized, but a quantified legislative criterion already expressing an explicit

balance between effectiveness and the protection of the debtor's existential

minimum. For that very reason, judicial relativization of this threshold, however

well-intentioned, projects serious risks of legal uncertainty and judicial substitution of

legislative balancing.

The institutional cost of systematically relativizing objective criteria does not end in

the individual case. In the short term, such relativization may increase enforcement

pressure and facilitate the satisfaction of specific credits. In the medium term,

however, it reduces predictability, weakens settlement incentives, and encourages

satellite litigation over living standards, family expenses, and the evidentiary content

of subsistence. In the long term, it may foster mutual distrust between courts and

legislatures, encouraging legislative reactions that are more rigid and less sensitive

to concrete circumstances. A judiciary that substitutes for the legislator too frequently

may, paradoxically, provoke a legislative environment less open to judicial nuance.

In a Democratic State governed by the rule of law, the authority of the Judiciary is not

measured by its capacity always to advance, but by its capacity to know when to

concretize, when to refrain, and when to return to the legislature the task that

belongs to it. A Judiciary that can relativize everything may perhaps seem strong in

the short term; but a Judiciary that knows the boundaries of its own legitimacy is

institutionally stronger, more trustworthy, and more consistent with the constitutional

order.

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