Limites na Aplicação da Pena Cominatória Judicial no Direito Brasileiro

Abstract

The fulfilment of the obligation is the natural way to extinct the obligatory bond. Amongst the essential characteristics of the payment, the right of the creditor to the satisfaction of the installment in the stipulated form, or either, the specific fulfilment of the obligation is right of the creditor and basic
norm in substance of effect of the obligations. The conversion in damageses will only be able to occur when impossible the specific guardianship or the equivalent practical result. Consequently, the Brazilian Code of Civil Procedure foresees ways of coercion that search for the fulfilment in natura of the obligations, such as the comminatory fine. The main purpose of the fine is the respect to the judicial writ, or the imperium of
the jurisdictional function. Thus, the judicial comminatory penalty is directed not only to repair a damage, but mainly to punish the stubborn persistence in the inexecution of a judicial order. The limits in the  implementation of the fine will be imposed through the principle of proportionality, as criterion delimiter, so that excesses are not committed.