Os impactos da lei n. 13.105/2015 no processo cautelar fiscal: a aplicação sobre a ótica do poder geral de cautela e o sincretismo processual regressivo.

Abstract

The purpose of this study is to examine the use of the Fiscal Cautelar Measure instituted by Law No. 8,397 of January 6, 1992, in view of the new procedural system created by Law 13,105 of March 16, 2015. The new Code of Civil Procedure presented a reformulation in the study of provisional measures, unifying procedures of an anticipatory and incidental, satisfactory or joint nature, concluding the intention to simplify the instruments. This measure, of course, influenced the precautionary procedures that existed previously, including the specific assecuratorial measure used by the Public Treasuries repectivas. Conceived as a form of protection for public credit, the Fiscal Cautelar Measure remains applicable even after the new code of rites has been edited, and the operator has to adapt it to the innovations presented. In compliance with the constitutional precepts of the adversary and ample defense, the tax collection activity will depend on the adoption of various administrative procedures, in addition to the need to file a tax enforcement action to finalize the acts of property expropriation for credit satisfaction. The use of appeals and appeals in the administrative and judicial spheres may delay the payment of taxes and allow undue time for the debtor to become insolvent, thereby jeopardizing tax collection. In this way, it is necessary to understand that the maintenance of the public administration will depend on the adoption of measures that guarantee the effectiveness of the activity of collection. Consequently, it will be defended the maintenance and expansion of the hypotheses of compliance of the Fiscal Cautelar Measure in light of the new Code of Civil Procedure. In order to do so, it is adopted the evolution of the general power of caution by the court (article 139, IV, CPC / 15), as a way to legitimize more hypotheses of cabimentos besides the cases stamped in the specific law. In the same sense, the optimization of the assecuratorial and expropriatory procedures carried out in the same judicial courts, through the understanding of procedural syncretism in its regressive form, would cause procedural economy and celerity.