Art. 137. If the person responsible does not own real estate or owns it of insufficient value, movable property susceptible of attachment may be seized, under the terms in which the legal mortgage of real estate is provided. (Wording provided by Law No. 11,435 of 2006).
§ 1 o If these goods are fungible and easily deteriorated, proceed in the form of § 5 o of article 120 . from your family.
Preference for real estate and arrest procedure
Collateral preference: The collateral preference is that it falls on real estate, by means of a mortgage, preceded or not by attachment. If there are no properties, the seizure of furniture is resorted to.
Seizure under the terms in which the legal mortgage is granted: This device number 137 is not a preliminary arrest. It is an arrest under the terms of a legal mortgage . In other words, the same procedure as in article 135 follows: 1 – by means of a petition, which is filed in a separate section, the injured party estimates the amounts of damage suffered by the furniture that must be seized. The petition will be accompanied by evidence or an indication of the evidence to be produced; 2 – the arbitration of the amount of damages will be made by the judicial evaluator or by an expert appointed by the judge; 3 – after hearing the parties, the judge will decide, authorizing the collection and deposit only of the furniture necessary to guarantee the value of the damages.
Legitimacy, goods of lawful origin, assessment in a separate box
Legitimacy: Legitimacy to request arrest rests with the Public Prosecutor’s Office (see comments to article 142 ), the victim, his heirs or his legal representative and the assistant to the prosecution.
Goods of lawful origin: The attachment falls on goods of lawful origin. If they are goods acquired with the proceeds of the infraction, they must be the object of seizure, not attachment.
Assessment in a separate process: The request for arrest is an incident procedure. It does not suspend the criminal process. Like every incident, it must be reported separately, so as not to hinder the progress of the main process.
Time to apply and no need to prove the danger of delay
Time to request the arrest: The arrest can be requested both at the investigation stage and during the course of the judicial process. See Mortgage may be required at inquiry – Article 134.
No need to demonstrate the periculum in mora : In order to grant the specialization of the legal mortgage, article 134 only requires the certainty of the infraction and sufficient evidence of authorship . No mention is made of the need to prove the danger of delay, so such proof is not required. Therefore, for the granting of arrest, the same is required, only the certainty of the infraction and sufficient evidence of authorship. See No need to demonstrate periculum in mora – article 134.
Unseizable assets: According to article 833 of the CPC, the following cannot be seized: I – inalienable assets and those declared, by voluntary act, not subject to enforcement; II – the furniture, belongings and household utilities that adorn the residence of the debtor, except those of high value or those that exceed the common needs corresponding to an average standard of living; III – the clothes, as well as the personal belongings of the debtor, unless of high value; IV – salaries, allowances, wages, wages, remunerations, retirement benefits, pensions, annuities and monies, as well as amounts received by third parties and intended for the maintenance of the debtor and his family , the earnings of self-employed workers and the fees of liberal professionals, with the exception of § 2; V – books, machines, tools, utensils, instruments or other movable property necessary or useful for the performance of the debtor’s profession; VI – life insurance; VII – the materials necessary for works in progress, unless these are pledged; VIII – the small rural property, as defined by law, provided that it is operated by the family; IX – public resources received by private institutions for compulsory application in education, health or social assistance; X – the amount deposited in a savings account, up to the limit of 40 (forty) minimum wages; XI – public resources from the party fund received by a political party, under the terms of the law; XII – credits arising from the sale of real estate units, under the real estate development regime, linked to the execution of the work.
The decision in the procedure and final settlement in the civil jurisdiction
The decision in the procedure: After the evaluation and after hearing the parties, the judge must launch a reasoned decision, granting or not the attachment. Once granted, the decision must contain an assessment of the damage and the seized furniture, as well as a determination of collection and deposit of the assets.
Final settlement in the civil jurisdiction: The amount of damages established by the magistrate in this article 137 is a provisional amount, intended only to safeguard sufficient assets to guarantee future civil enforcement. The definitive value, certain, its real extent, can be settled later, in the civil jurisdiction. The value of the liability will be settled definitively after the conviction, and a new arbitration may be required if either party does not comply with the arbitration prior to the conviction. In the same sense, Article 63 , by stating that the offended party, his legal representative or his heirs may promote the execution of the final conviction, in the civil court, for the purpose of repairing the damage. This is why Article 143 provides that, once the conviction becomes final, the mortgage or attachment records will be sent to the civil judge.
Seizure of furniture with preliminary injunction
Seizure of furniture with an injunction: There is no impediment for the party to request the injunction of furniture. When it comes to injunctions, injunctions are always viable. It is the anticipation of precautionary relief, given the urgency that is present. By analogy, article 136 applies , that is to say, if the seizure injunction is granted, with the delivery of the goods to the depositary, the author of the request has 15 days to petition for the seizure pursuant to article 135 , estimating damage values and furniture and presenting and indicating evidence.
Appeal and writ of mandamus
Appeal and writ of mandamus: Against the decision granting or rejecting the attachment request, an appeal may be filed based on article 593, item II , within a period of five days. As the appeal does not have suspensive effect, the writ of mandamus is also appropriate. On appeal and injunction for these cases, see the heading Appeal and injunction in notes to article 120.