A dimensão dinâmica do contraditório no direito processual civil cooperativo : revisitando o dever de fundamentação das decisões judiciais

• Autor(a) principal: Frigini, Flávia Spinassé
• Data de Publicação: 2016
• Tipo de documento: Dissertação
• Idioma: por
• Título da fonte: Repositório Institucional da Universidade Federal do Espírito Santo (riUfes)
• Texto Completo: http://repositorio.ufes.br/handle/10/8807
• topic: Valorative-formalism; Cooperative procedure; Dynamic contradiction; Grounding legal decisions; Duty of consulting; Formalismo-valorativo; Processo cooperativo; Contraditório dinâmico; Fundamentação das decisões judiciais; Dever de consulta; Direito Processual Civil; Direito processual; Processo civil; Contraditório (Direito); Juízes - Decisões; Direito e ética; 340

Lawsuits experience the milestone of valorative-formalism. This new methodological stage comprises lawsuit as an instrument to realize constitutional guarantees. The socalled “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 judge’s 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 judge’s ethical commitment to activities grounding his or her decisions. Subsection IV of § 1 in Article 489 strictly foresees the judge’s 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 plaintiff’s trust in justice.