Name: FLÁVIA SPINASSÉ FRIGINI
Publication date: 03/05/2016
Examining board:
Name |
Role |
|---|---|
| RODRIGO REIS MAZZEI | Internal Examiner * |
Summary: Lawsuits experience the milestone of valorative-formalism. This new methodological stage comprises lawsuit as an instrument to realize constitutional guarantees. The so-called excessive formalism" is repulsed. Relevant attention is paid to the principle of contradiction, from which we extracted the participation substrate. The new Brazilian Code of Civil Procedure incorporated several constitutional rights into the infraconstitutional sphere. Article no. 6 maintains the cooperation duty of all procedural subjects in order to achieve a fair and effective decision. In cooperative civil procedural law, there is valorization of ethical commitment among procedural subjects as they play their roles, so as dialogical procedures can be attained. The principle of cooperation proposes the mandatory adoption of particular behaviors. The judge, among other duties, is responsible for the task of consulting. The judges duty is to consult the parties about any unclear question arising from the lawsuit before the decision. This duty is directly related to the dynamic feature attributed to contradiction. From this perspective, the parties should be granted not only the right of information and reaction, but also of influence on judicial decisions. The duty of cooperation strengthens the judges ethical commitment to activities grounding his or her decisions. Subsection IV of § 1 in Article 489 strictly foresees the judges duty to take all the fundaments provided by the parties into account. It is seen that this demand consequently improves decision-making by reducing judicial subjectivity, as well as strengthening defendant and plaintiffs trust in justice.
Keywords: Valorative-formalism Cooperative procedure. Dynamic contradiction. Grounding legal decisions. Duty of consulting.
