The Dynamic impartiality

• Autor(a) principal: Camacho, Luciana da Silva Paggiatto
• Data de Publicação: 2023
• Tipo de documento: Artigo
• Idioma: por
• Título da fonte: Direitos Democráticos & Estado Moderno
• Texto Completo: https://revistas.pucsp.br/index.php/DDEM/article/view/64447
• topic: Constitution; Civil Procedure; Social Democratic State of Law; Dynamic Impartiality; Constituição; Processo Civil; Estado Social Democrático de Direito; Imparcialidade dinâmica; Constitución; Proceso civil; Estado Socialdemócrata de Derecho; Imparcialidad dinámica

The present work aims to conduct a general study on the shift in paradigm regarding the principle of impartiality, starting from the Constitution, values, fundamental norms, and principles supported by the current Code of Civil Procedure. As for the specific objectives, it proposes a necessary contextualization with the Global Access to Justice Plan, Constitutional Amendment No. 45/2004, the II Republican Pact, and, in this sense, the commitments assumed by the current Code of Civil Procedure and Social Justice, which requires a reconstruction of the principle of impartiality, where the judge abandons the equidistant and neutral stance to provide effectiveness, equality, and justice. In this sense, the protagonism of the Judiciary as a transformative agent of society is highlighted, along with the consequent study of the principle of the judge's impartiality. Therefore, a methodological approach is required, which will focus on the interpretation of the impartiality principle of the judging body, using the hypothetical-deductive scientific methodology, through deductive reasoning and observation of social reality. As a research technique, the studies will make use of the legal system, doctrinal bibliographic collection, such as literary works, theses, dissertations, and scientific articles related to the proposed theme in this study, in addition to jurisprudential analysis. Regarding the results, the following are outlined: (i) the need for an interpretative rereading of the legal system, aligned with the Constitution, in convergence with the values and paradigms established by the constitutional order, where it is affirmed that it is initially necessary to understand before interpreting; (ii) the need for reflection on the implementation of constitutional norms and their effectiveness, not only for the promotion of safeguarding the Democratic State of Law but also for the effectiveness of the objectives and republican foundations established in Articles 1 to 4 of the Constitution, reaffirming the effectiveness of fundamental rights; (iii) in this context, the necessary and essential rereading of the concept surrounding the principle of impartiality in its material aspect, that is, dynamic impartiality. Considering the presented archetype, the scientific conclusion will aim to stimulate the debate on the old concepts revolving around issues related to the impartiality of the judging body and, under the light of the Constitution and the contemporary social context, inquire into the reconstruction of paradigms and new concepts, among which the principle of dynamic impartiality is presented.