Vedação à decisão surpresa no processo civil


IBICT - Instituto Brasileiro de Informação em Ciência e Tecnologia




The aim of this dissertation is to analyse the prohibition of surprise/unexpected decisions in civil procedure as a guarantee originated from the principle of contradictory. The choice for this topic derives from the necessity to demonstrate that a judge cannot give a decision based on a fact or law that was not previously discussed among all parties, including those matters that could be granted and recognized "ex officio" by the judge. In order to demonstrate this fact, this dissertation begins establishing that civil procedure is currently on its forth methodological phase in which the Brazilian Federal Constitution has a normative force, principles are norms and civil procedure must be analyzed both from a fundamental rights perspective and according also to a participatory democracy. Another premise established is that tutela jurisdicional (judicial relief) is the methodological center line of civil procedure law, meaning that civil procedure should be studied in the light of judicial relief. With that, it is possible to establish that the contradictory is a basic principle of process, derived from due process of law. Later, it is noted that the first content of the principle of contradictory is the guarantee of communicating procedural acts to all parties involved in the lawsuit, followed by the possibility of manifestation about these acts. Apart from these formal contents, the principle of contradictory also guarantees to these parties the possibility to participate on the development of the procedure, to influence the judicial decision, to have their arguments considered and not to have a surprise or unexpected decision. Considering these facts, it can be said that the principle of contradictory is directed to the judge, who also becomes obliged to a series of duties. This is followed by a specific analysis of the prohibition of unexpected or surprised decisions on German, French, Portuguese and Italian law, in order to conclude that this prohibition derives from the principle of contradictory, also, in Brazil. Afterwards, the contraditório institucionalizado (institutionalized contradictory) is studied. With this examination and considering that the application of the contradictory can be limited to relating this principle to the other constitutional procedural principles, there are cases in which it is purposeless, postecipado (that is given after a preliminary decision) or eventual. Finally, it is concluded that unexpected or surprise decision can be declared null by violation of the constitutional principle of contradictory, even though it can be corrected later


direito processo civil nova fase metodológica tutela jurisdicional princípio do contraditório decisão surpresa civil procedure new methodology tutela jurisdicional (judicial relief) principle of contradictory surprise decision

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