Name: GABRIELA AZEREDO GUSELLA
Publication date: 27/05/2020
Advisor:
Name |
Role |
|---|---|
| GILBERTO FACHETTI SILVESTRE | Advisor * |
Examining board:
| Name |
Role |
|---|---|
| GILBERTO FACHETTI SILVESTRE | Advisor * |
| TRÍCIA NAVARRO XAVIER CABRAL | Internal Examiner * |
Summary: This reserach has as its object of study the judicial control of
the validity of procedural conventions based on the subjective limit of the
manifest vulnerability of the party. This object is linked to the
concentration area Justice, Process and Constitution of the
Postgraduate Law Program at the Federal University of Espírito Santo, with
relevance to the research line Process, constitutionality and protection
of existential and patrimonial rights. It started from the problem caused
by the legal literature divergence on the content of the vague and polysemic
term manifests vulnerability expressly brought up in article 190, sole
paragraph, of the 2015 Brazilian Code of Civil Procedure, which hinders the
possibility of predictability and normative application. The objective was to
identify which species of vulnerability of the person could lead to the
invalidity of procedural agreements, aiming to contribute to the more
effective and safer use of this flexibility mechanism. In this sense, the
research began by analyzing the principle of favor deboli and the
various types of vulnerabilities protected by law, demonstrating the
importance of the existence of differentiated legal protection for vulnerable
people. As the methodological approach was based on the analysis of
procedural conventions, basic theoretical assumptions were made about its
study, evidencing its conceptualization, the main classifications and the
analysis of the institute from the perspective of the plans of existence,
validity and effectiveness. It was taken into account demonstrating the legal
nature of the manifest vulnerability, the time for its assessment, wether it
can be met and how the reasoning of the decision that verifies the manifest
vulnerability of the party and invalidates the procedural convention must be
carried out. Finally, starting from a legal literature, jurisprudence and
national legislation research based on the theoretical premises outlined and
aiming at a systematization of the matter, it was possible to conclude that
the concept of vulnerability that can give rise to judicial control of the
validity of the procedural conventions are not restricted to the
technical-legal sense, with several types of vulnerability foreseen in the
brazilian legal system that may cause a manifest asymmetry for the purpose of
concluding the agreement. It was also concluded that even in legal
relationships WHERE there is an assumed vulnerability or hypervulnerability,
it will be possible to make a procedural subject agrément.
