Marco Filipe Carvalho Gonçalves.cdr - Universidade do Minho

Embargos de Terceiro na Acção Executiva
OBJECTIONS BY THIRD PARTY IN THE EXECUTIVE ACTION
As an introduction, the object of this study is to analyse the judicial treatment of
objections by third party in the scope of the civil procedure by trying to determine essentially in
what measure and in what way the judiciary defends the interests of third parties who have their
assets threatened or damaged by reason of an attachment in executive venue.
Thus, and as the methodology of the investigation so advised, we decided to split this
investigation in two parts.
In the first part we aim at defining the nature and scopes of objections by third party
through the comparison with similar concepts. In this context, when analysing the several means
of reaction to the attachment — dispute by simple request, objection to the attachment, claim
petition and objections by third party — we focus our attention in the definition of the limits of
objections by third party, as well as in the analysis of their specific scope of action in the
guardianship of the subjective rights in matter of enforcement.
After this first limiting of the contents of this judicial incident, we focus our study in the
objective scope of the objections by third party. Indeed, beginning with the literal element — if the
attachment or any judicially ordered action of seizure or handing over of assets shall harm the
ownership or any right which may be incompatible with the accomplishment or the scope of the
proceeding — we analyse in the first place which are the different judicial status liable to
guardianship in objections by third party venue. Next, and after decomposing the concept
«incompatible right» we examine which of the different rights of a substantive nature allow or not
the appeal to objections by third party in view of the consequences they shall suffer with the
executive sale.
Our study also comprises the analysis of a few questions of judicial nature concerning
objections by third party. Consequently, the second part of this investigation is dedicated to the
analysis of the judicial rules regarding the judicial exercise of objections by third party since the
substantive protection of that right, independently of its material scope of execution, shall be
irremediably damaged if not correctly managed in accordance with the judicial iter outlined by
the legislator.
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