O formalismo processual e o princípio da adaptabilidade dos procedimentos às exigências da causa : uma análise em face de princípios constitucionais

AUTOR(ES)
FONTE

IBICT - Instituto Brasileiro de Informação em Ciência e Tecnologia

DATA DE PUBLICAÇÃO

24/02/2011

RESUMO

This paper aims at analyzing the Brazilian jurisdictional system, especially concerning the procedures and the powers of the judge while conducting the lawsuit, and at answering some questions such as: is it possible, based on the demands of the case, to apply the principle of procedural adaptability, propagated by the Italian doctrine, to our jurisdictional system? Could the judge, while enforcing leading and decision powers during the legal proceedings, have a more flexible procedure than provided by law in order to add greater effectiveness and celerity to the jurisdictional system? To answer the abovementioned questions and many others, it is necessary to conduct a study on the basic principles of our Nation, as well as on the existing theories about the definition of the lawsuit and its procedures, and also the extension and amplitude of the procedural formalism on its current conception (defined by the scholar Carlos Alberto Alvaro de Oliveira, as “evaluative-formalism”). It also aims at studying the so called case management taken from the American and British jurisdictional system (which is a way to apply the same flexible procedure described above), and the possibility of applying it to our system. And to conclude (with the sole objective of motivating the study of the subject, and without the intention of covering the entire issue), it puts forward the limited application of the aforementioned principle (procedural adaptability based on the demands of the case) to the Brazilian jurisdictional system, as well as the non application of the case management to our system. This position can be especially justified based on the singularities, the features and the other existing and prevalent principles of our jurisdictional system, such as legality, the due legal proceedings, and legal security, which impose limitations to the judge s powers and to the obligation of following legal procedures, where legal flexibility may occur only when the Law itself permits; in specific cases and not in an open and generalized way.

ASSUNTO(S)

formalidades (direito) direito processual estado democrático de direito procedimento (direito) contraditório no processo de direito democratic rule of law adversary system (law) procedural law

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