Fundamentos constitucionais do modelo processual cooperativo no direito brasileiro.


IBICT - Instituto Brasileiro de Informação em Ciência e Tecnologia




The main objective of this work lies in the statement of the constitutional fundaments that support the adoption of the cooperative model of civil procedure in the Brazilian legal system. To achieve this purpose, the research is developed starting from the study of the major legal traditions of the western world (common law and civil law), whose prime characteristics and distinctive features are highlighted, as well as its importance for the understanding of process models, especially those traditionally related to them: the adversarial and inquisitorial. Brazilian legal tradition is, then, analyzed. It then passes the scrutiny of each individual process models, presenting its unique characteristics, how they structure the division of tasks between judge and parties in conducting formal and material process, as well as political ideologies that with them better fit. The collaborative process model, based on principle of cooperation, is then presented as a new model, distinct of the two previously analyzed. His distinguishing mark, the organization of the process as a real working community, is enhanced at the time that it demonstrates the existence of manifestations of topical application of this model in Brazilian law, both in infra-constitutional legislation as in the homeland jurisprudence. The Portuguese civil procedure system, where the principle of cooperation is explicitly provided, is also examined, both from the doctrinal point of view as with regard to jurisprudence found therein. Based on these premises, it becomes possible, then, a comparison of the three process models with the Brazilian Constitution of 1988. This analysis is conducted in the light of the constitutional foundations of participatory democracy, of human dignity, solidarity, due process, of adversarial principle and of objective good faith in order to assess which of the procedural models better fit with Brazil legal system.


constitutional fundaments processo civil brasileiro fundamentos constitucionais modelo cooperativo ciências sociais aplicadas cooperative model brazilian civil procedure

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