O princípio dispositivo no processo civil contemporâneo
AUTOR(ES)
Maria Elizabeth de Castro Lopes
DATA DE PUBLICAÇÃO
2003
RESUMO
After examining the current trends of the Brazilian civil suit, and bearing in mind the concepts of system, standard, principle, and rule, the study faces a difficult topic, that of the disposition principle, notably in regards to the access to justice and to the effectiveness of jurisdictional guardianship. When analyzing the classical concept based on the secundum allegata et probata, ne procedat iudex ex officio, nemo iudex sine actore etc. maxims, one tries to demonstrate that the suit is no longer an issue of the parties (Sache der Parteien), and that the judge, once a simple observer or spectator of the litigation (stone guest), is now the subject of the suit, with powers of guidance, and the ability to find facts necessary for the execution of justice. After TITO CARNACINI s contribution regarding the distinction between the matters which constitute the monopoly of the will of the parties, and those that interest the suit stmcture and technique, the matter evolves towards the material direction of the proceedings by MAURO CAPPELLETTI, whose influencion the Brazilian law is acknowledged by all authors who have studied the subject matter. However, one should not come to the conclusion that the judge has been transformed into the owner of the lawsuit, or into an investigator of facts, for this disagrees with the current trends regarding collaboration that should exist between the subjects ofthe lawsuit. Based on such premises, the study analyzes the disposition principle, and aims to demonstrate its subsistence in the Portuguese, Spanish, and Italian laws with the analysis of the relevant legislations and doctrine. Lastly, the study approaches the implementation of the disposition principle in the writ of execution and on the urgent guardianship
ASSUNTO(S)
direito processo civil -- brasil principio dispositivo
