(In)Eficiência do protesto extrajudicial como meio de recuperação de dívida ativa: exame empírico sob a perspectiva da Análise Econômica do Direito

Abstract

In the last years, tax execution has shown itself as an inoperative procedure for the reason which it was stablished. This situation has led law operators to seek alternative instruments for the collection of active debt. In this scenario, the Active Debt Certificate's extrajudicial protest became a practice adopted by some public prosecutors' offices, especially after 2015, when the Supreme Federal Court, based on legal and economic arguments, declared the law that expressly authorized the protest of the active debt to be constitutional. The dissertation aims to infer the extrajudicial protest’s efficiency as an instrument for the active debt’s recovery. In order to do so, it will proceed an empiric study, quantitative-qualitative, by collection, tabulation and analysis of all active debt certificates protest’s procedures forwarded to a Protest Notary Public from the state of Rio Grande do Sul in the year of 2019. The research initiative is justified according as the data’s survey and analysis will not be an end in itself, but will allow the inference about this juridical practice’s efficiency, in order to subsidize debates around the convenience of the extrajudicial protest’s adoption as a mechanism of the active debt’s collection. The study is divided into three parts. Initially, it proposes to proceed a bibliographic revision of the juridical institute that involves the dissertation, regardless of which is the extra juridical protest, making an intersection with the thematic of Economic Analysis of Law and with the comprehension of protest as a mechanism of active debt’s recovery. After, it is intended to describe the methodology to be used in the research. Finally, the last stage consists on the data’s tabulation and analysis, and the results’ discussion, with a view to verify the confirmation of the hypothesis presented. After the conclusion of the study, it was inferred that, in the research’s universe here adopted, the extrajudicial protest has shown itself as an efficient mechanism to active debt’s collection, whose adhesion combines with the principle of the efficiency on the Public Administration’s actuation. It is suggested, from lege ferenda, that the Active Debt Certificate's previous out-of-court protest should be raised as a condition of the action for the filing of tax enforcement, without which the Public Treasury would have no interest in taking action.