Remessa necessária sob o prisma do processo civil constitucional

• Autor(a) principal: Coutinho, Adriano Athayde
• Data de Publicação: 2013
• 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/10/2737
• topic: Compulsory appeal; Fundamental rights; Civil procedure; Constitutionalized; Reasonability; Principle of equity; Constitucionalizado; Princípio da Isonomia; Remessa necessária; Direitos fundamentais; Processo civil; Razoabilidade (Direito); Direito Processual Civil; 340

The theme of compulsory appeal under the prism of constitutional civil procedure, have strong justification for the research, because the legal origin of the institute in Brazilian civil procedural system has several uncertainties. The old justifications present in the Portuguese criminal procedure were not enough to extend the institute for civil Lusitanian. Unlike the Portuguese smart conduct in removing of his procedural system was then known as "ex officio appeal," the institute remains the Brazilian civil procedure, causing doubts. From the viewpoints historical and sociopolitical, do not exist bases for maintaining ‘compulsory appel’. In effect, the rejection of the ‘compulsory appel’ as something close to appel (accepting the idea of substitute appellate) or even reverse the position (denying its contours appellate) ends up creating conflictual environment, with little legal certainty. Seeks to analyze that with the force of the Constitution of 1988, a new social order is instituted in Brazil, generating excitement with respect to fundamental rights. This new constitutional order has the privilege to propagate over all the rules infraconstitutional positive influences. It is verified as a result of its incompatibility with the current notion of civil procedure constitutionalized, the violation of the constitutional principle of equality between the parties, which keeps the quality of fundamental right. The current required reciprocal treatment between public and private interests, support the conclusion that the primary public interest of the individual must be respected when confronted with the lato public interest of the public treasury. So in ‘compulsory appeal’ the, spoken reciprocity have the purpose of guarantee the respect for certain fundamental principles expressly contained in the Brazilian Constitution, namely the Principle of Equality and the Average Duration of process, which by guarantees of due respect for the principle of Due Process of Law in its substantive and procedural aspects.