Princípio dispositivo e o papel do juiz: a procura de um equilíbrio

• Autor(a) principal: Silva, José Gomes da
• Data de Publicação: 2006
• Tipo de documento: Tese
• Idioma: por
• Título da fonte: Biblioteca Digital de Teses e Dissertações da PUC_SP
• Texto Completo: https://tede2.pucsp.br/handle/handle/6972
• topic: Princípio dispositivo; O papel do juiz; Justica; Juizes; Jurisdicao; Dispositive principle; CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO

Starting from philosophic alignment of the just conception which pursues Justice, the present work tried to outline the profile of the dispositive principle of pure, in its birth, to now, united, with great effort, by the legislator, to the query principle. With this new configuration of the principle, the power of the judge is strengthened, noteworthy the instruction power, compromised with the publicist sign of the process and the socialization of the law, so that it implicates, more and more in search of the real true relevant facts put under judicial analysis, with the consequent practical realization of the called justice of the concrete case tending to social pacification. In fact, with the idea that the administration of justice is an integrant of state sovereignty, was formed the assurance that the judge, as a state organ, must not any more watch passively the judicial dispute between parties, as happened before, but should participate of the cause as live and active force. Under this view, is intensified in modern processual legislations, the participation of the judge in the instruction activity stage. Although subsists the rules about the charges of proof, they are not affected by the power of the judge to determine the realization ex officio of any proof, for it constitutes the last solution in the formation of a safe conviction. Acts with enormous mistake who still defends the thesis that one should let the parties bring or not the proofs they want and if they don´t that is because they are using a right that assists them. Even though they can dispose of their rights, no power of disposition is over the power of the judge to inquire the relevant facts of the case, that is a function of who judges, judge well, with justice and therefore vital to know the facts well. Counteracts the spirit of the code and modern civil process, a judge rule, consciously against the real truth, by alleged absence of proof, knowing of its existence, and also aware that only by ignorance or not knowing the party did not require it in capable time