Direito

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http://repositorio.ufes.br/handle/10/17545

Programa de Pós-Graduação em Direito Processual

Centro: CCJE
Telefone: (27) 4009 7723
URL do programa: http://www.direito.ufes.br/pt-br/pos-graduacao/PPGDIR

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Agora exibindo 1 - 20 de 136

A (in)tangibilidade da coisa julgada perante decisão de inconstitucionalidade : uma análise do parágrafo 15 do artigo 525 do Código de Processo Civil
(Universidade Federal do Espírito Santo, 2017-06-02) Lyra, João Paulo Barbosa; Moussallem, Tárek Moysés; Jeveaux, Geovany Cardoso; Lins, Robson Maia
The main goal of this dissertation is to analyze the compatibility of paragraph 15 of Article 525 of the Code of Civil Procedure with the Brazilian Legal Order. From the theoretical model of logico-semantic constructivism, Law is understood as a set of rule of laws and cultural object constituent by its own realities by means of deontic speech act. To each production of legal norm there is a new legal system in a certain time. Legal security safeguards legal facts that occur in each of the legal system , ensuring the maintenance of the legal relationships created by Law. In order to protect the Federal Constitution, the constituent created forms of constitutionality control which will be proceeded either in a diffuse way, or in a concentrated way, not having hierarch between these two forms. From this perspective, the concept of res judicata is set from its normative structure as well as fundamental right guaranteed by the Federal Constitution of 1988. This theoretical and legislative panorama support the conclusion by the unconstitutionality of the provision in the Code of Civil Procedure of 2015.
A arbitragem de litígios envolvendo entes públicos como tendência do processo civil contemporâneo
(Universidade Federal do Espírito Santo, 2011-05-13) Fernandes, Jeane Santos Bernardino; Moschen ,Valesca Raizer Borges; Rodrigues, Marcelo Abelha; Lemes, Selma Maria Ferreira
This essay opens up about the unpretentious attempt to tack marks doctrine and jurisprudence on the use of arbitration in domestic and international commercial contracts, aiming to operate a critical analysis of the weights that advocate the barriers to adoption of private methods of conflict resolution arising under state contract. Dissent befallen the spontaneous fulfillment of government contracts, it is imperative to help the resolution of the dispute mechanisms. Considering the crisis of credibility of the judiciary, delays in proceedings, and often, lack of understanding of the specificities and peculiarities of contracting this work dissertational promotes the defense of arbitration to the demarcation dispute had in the achievement of such contracts. It should proceed to investigate the views, trends and prospects of resolving conflicts in property contracts signed by state and parastatal entities nationally and internationally, giving rise to an analysis of vestibular problems extracted from there. The key point to be faced erects itself on the strength of traditional doctrine accepting the arbitration of domestic and international commercial arbitration for the intended scope, the ground affront to constitutional principles and attachments normative legal ruling. Aiming debug prints retrograde and unthinking assertions, it should be brought to light perception renewals and compliance internationalist issue for the debate on the national scene will conform to the current situation. The work goes through, respectively: a) the baseline concept of arbitration and the institutes of public procurement in its arrangements, b) analysis of the shortcomings of the judiciary as one of the reasons for the adoption of arbitration and the impact of new limits on the elimination of dissent in public procurement through non-judicial, treat, yet c) the failure plexus rules at national level as a cause enough to opt for alternatives to the current state interference in order to conclude by the powerless of arbitration; d) harmonization of laws you want, without necessary changes in the embargo regulations elementary developed so far. This thirst lauds the study of brief notes about some of the hotspots of choice for domestic arbitration and international commercial contracts in public, stressing the dissonance of doctrine and jurisprudence on the subject in focus.
A ata notarial e o processo
(Universidade Federal do Espírito Santo, 2013-05-24) Antar, Natália Bastos Bechepeche; Rabelo, Manoel Alves; Brandelli, Leonardo; Mazzei, Rodrigo Reis
A autodeterminação quilombola na suprema corte brasileira : uma análise do processo judicial da ação direta de inconstitucionalidade n.° 3.239
(Universidade Federal do Espírito Santo, 2018-05-03) Muniz, Lucas Pacif do Prado; Silva, Sandro José da; Pompeu, Júlio César; Vincenzi, Brunela Vieira de; Francischetto, Gilsilene Passon Picoretti; Ribeiro Júnior, Humberto
The objective is to describe the trajectory of institutionalization of the right of collective selfdetermination of quilombolas peoples in the Brazilian Law through the judicial process. The intention is demonstrate how this right foreseen in Convention n.º 169 of International Labor Organization, in force in Brazil, was seized by the agents of the legal field who acted in the process: on the one side as a right incompatible with the Constitution of 1988 and other internal legislation and, on the other side, as a legal resource capable of influencing the attribution of the normative sense of art. 68 of the Transitory Constitutional Provisions Act that provides for the territorial right of the remaining quilombo communities. The object of analysis that results in this dissertation is the direct action of unconstitutionality nº. 3.239 in ambit of the Federal Supreme Court, where the request is filed for the declaration of unconstitutionality of Decree n.º 4.887/2003, which establishes the procedures for identification, recognition, demarcation and titling of quilombos. It is a case study in which the electronic media of the judicial process were analyzed through the reading of legal pieces and visualization of the plenary sessions, with the recording and organization of the information obtained. The attention focus falls on the alleged material unconstitutionality of the contested decree, directly related to the right of self-determination of the remnants. During the study, it was found that the judicial process, for approximately 15 years, became an arena of symbolic struggles for the legitimate consecration of the conceptual definition of quilombo, an object opened since the resumption of debates, at the time promulgation of the 1988 Constitution, about which would be recipients of art. 68. There was a confrontation of two conceptual paradigms: one with a colonial basement established by the 1740 legislation and the other contemporary, elaborated by the Brazilian Anthropology Association in 1994. It was concluded that the Court legitimized the anthropological concept of quilombo and built the normative meaning of the right of self-determination of quilombola peoples, institutionalizing based in the elements self-definition, ethnicity and territoriality. With this, it established conditions for the effective access to territory to the remaining communities, as provided for in the 1988 Constitutional Charter.
A boa-fé objetiva no processo civil : a teoria dos modelos de Miguel Reale aplicada à jurisprudência brasileira contemporânea
(Universidade Federal do Espírito Santo, 2008-08-15) Santos, Leide Maria Gonçalves; Lima Neto, Francisco Vieira; Zaneti Júnior, Hermes; Vincenzi, Brunela Vieira de
Lo scopo principale di questo lavoro è quello di presentare la buona fede oggettiva come paradigma reggente dei rapporti intersoggettivi nel campo del Diritto Processuale Civile dimostrando il superamento dell’ applicazione rigorosa delle tecniche processuali dall’influso dei valori sociali, politici e culturali. La nuova sfumatura impressa dalla buona fede oggettiva nel campo del Diritto Processuale Civile stabilisce un modello oggettivo di condotta sociale segnato dalla lealtà e dalla probità che impera come standard giuridico per tutti coloro che partecipano del rapporto giuridico processuale. Le garanzie costituzionali processuali, espressione dello Stato Democratico di Diritto, sono ottimizzate attraverso le regole stabilite dalla buona fede oggettiva come norme che regolano la dialetticità del contraddittorio segnato dalla cooperazione leale e proba. La buona fede oggettiva, come causola generale effettivata nell’art. 14, inciso II del Codice di procedura civile, irradisce il suo costrutto in tutti gli espettri del Processo civile attraverso i modelli giuridici costruiti dalla giurisprudenza con l’uso della Topica, portando un nuovo raggio di luce per il raggiungimento dell’effettività della prestazione della tutela giurisdizionale.
A cláusula de eleição de foro nos contratos internacionais de transferência de tecnologia envolvendo patentes : limites da jurisdição internacional
(Universidade Federal do Espírito Santo, 2012-06-01) Vasconcellos, Júlia Fiorin de; Moschen, Valesca Raizer Borges; Jeveuax, Geovany Cardoso; Jimenez, Martha Lucía Olivar
It is not recent the increase in international trading, and it is also not recent that technological development and intellectual property have been receiving a prominent place as the true feature differentiating countries and companies. Such international context justifies the analysis of choice-of-court clauses in international industrial property agreement, specifically the clauses indication the competent jurisdiction to hear inevitable disputes. This thesis aims to examine the jurisdiction clauses in the international technology transfer agreements involving patents, due to the uncertainty that arises from this theme, and also the few studies written in Brazil and overseas regarding the subject. It has been identified that industrial property generates innumerous doubts when considering public policies and national sovereignty, particularly because they have to be registered with the competent authorities of each States, and because there is usually an invalidity claim related with such cases. To this end, an outline was established for nonexclusive competence in the Brazilian’s legal system, and its main repercussions in the national jurisprudence, primarily to analyze the compatibility of the choice-of-court clauses in international technology transfer agreements involving patents with the current and expected to be future Brazilian Civil Procedure Code. Registration, validity and contractual infringement issues were raised, together with the solutions proposed by the Hague Convention of June 30, 2005 on Choice of Court Agreements, as they may be incorporated to the Brazilian legal system to respond more objectively to the issues relating to jurisdiction choices
A coisa julgada e os seus limites objetivos no Código de Processo Civil de 2015
(Universidade Federal do Espírito Santo, 2016-06-20) Gama, João Felipe Calmon Nogueira da; Jorge, Flávio Cheim; Moussallem, Tárek Moysés; Brasil Junior, Samuel Meira
A coisa julgada no código de processo civil de 2015 : premissas, conceitos, momento de formação e suportes fáticos
(Universidade Federal do Espírito Santo, 2016-06-30) Senra, Alexandre; Mazzei, Rodrigo Reis; Mourão, Luiz Eduardo Ribeiro; Nogueira, Pedro Henrique Pedrosa
The research deals with the res judicata in the Civil Procedure Code of 2015 (CPC/15), from a normative perspective. It is divided basically into two parts. In the first part, are exposed the author's premises. The legal phenomenon is examined, according the theory of legal fact, in the level of general theory of law. The language of positive law is differentiated from the language of science of law, based on three criteria: hierarchy, type and function. Words, concepts and definitions are distinguished from each other and articulated. The second part develops the theme (res judicata). After examining the main concepts of res judicata developted and used by the doctrine and making a first confrontation between them and the CPC/15, the concepts of res judicata that the author considers useful to the understanding of the matter, as regulated by CPC/15, as designed and defined. Then, the attention is turned to the Constitution, so that the constitutional limits for the legislative activity on the subject are verified, prior to a deeper examination of the rules inside the CPC/15. After that, it analyzes the initial moment of res judicata in various situations. Finally, the longest chapter examines the types of legal facts that produce the legal effect res judicata. They are analyzed from three categories, which the author calls: "res judicata on main issues", "res judicata on procedural matters" and "res judicata on incidental prejudicial questions."
A competência dos tribunais de contas para a concessão de medidas de natureza provisória : uma reflexão sobre seus limites
(Universidade Federal do Espírito Santo, 2017-06-14) Franco, Elisangela Fabres; Jorge, Flávio Cheim; Rabelo, Manoel Alves; Pedra, Anderson Sant’Ana
In the Brazilian constitutional system, the Court of Auditors performs the duties of control of direct and indirect public administration. From an analysis of the constitutional text in the light of its fundamental principles and of the republican democratic institutional context, this work examines the extent of control exercised by the Courts of Auditors in Brazil, in a scenario where the search for efficiency in the public officials' conduct is a constitutional requirement. In exercising its constitutionally provided competence, the Court may, for example, impose penalties on managers, determine the return of values to the Treasury, declare the unsuitability to contract with public administration, and, in the course of all processes under its jurisdiction, the Court may also issue provisional measures, acting preventively for avoiding potential damage. The investigation of the legal nature of these provisional measures embody the objective of this work, developed from the deductivecomparative method.
A cooperação no CPC-2015 : colaboração, comparticipação ou cooperação para o processo?
(Universidade Federal do Espírito Santo, 2018-04-27) Pimenta, Henrique de Souza; Madureira, Claudio Penedo; Zaneti Junior, Hermes; Cabral, Trícia Navarro Xavier
The research is dedicated to the subject of procedural cooperation, in order to examine which procedural subjects are bound by cooperative duties from the cooperative process model inaugurated by the Procedure Civil Code of 2015. It identifies, from a historical perspective, the existence of three models of procedural organization: adversarial, inquisitorial and cooperative. The adversarial model is related to the Liberal State and its central characteristics are the protagonism of the parties in the conduct of the process and the relatively passive position of the judge during the procedural. The inquisitorial model corresponds to the Social State and is marked by the presence of the judge as the main character of the process with a view to finding the "real truth". From its turn, the cooperative model is compatible with the Constitutional Democratic State and organizes the process around a "work community", in which all the procedural subjects contribute, from a dialogic environment, to the formation of the decision of judicial process of fair, timely and effective merit. It notes that the cooperative model find its foundation from the principle of cooperation, which is understood as a principle endowed with normativity to impose a state of affairs, so that, all conduct contrary to the promotion of a cooperative process environment will be considered illegal. It notes that cooperative duties derive from the principle of good faith and imply cooperative behavior for all procedural subjects. It states that the objective of the contemporary process is to safeguard rights in a fair, adequate, timely and compatible manner to fundamental rights, so that all procedural subjects, without exception, must observe cooperative duties. It verifies that cooperative duties are linked to the counterfactual function of the legal phenomenon, so that counterintuitive behaviors will be imposed on procedural subjects, so that all procedural subjects cooperate for the process. It notes that non-compliance with cooperative duties generates sanctions expressly established by law, as well as having the potential to entail a number of procedural disadvantages, such as a default judgment, the preclusion of untimely arguments, a judgment of merit on the grounds of insufficiency of evidence.
A distribuição dinâmica do ônus da prova em matéria tributária
(Universidade Federal do Espírito Santo, 2019-06-19) Sartório Junior, Roberto; Moussallem, Tárek Moysés; Zaneti Júnior, Hermes; Brasil Júnior, Samuel Meira
The purpose of this dissertation is to identify the applicability of the dynamic distribution of the burden of proof in tax lawsuits, especially regarding issues involving third party tax liability. This technique aims to seek the effectiveness of judicial protection with the scope of inhibiting the production of proof impossible by a party when the burden of proof falls on the adverse party that has better conditions to produce it. This will reflect, above all, on issues involving evidence of negative facts and assumptions. In this sense, to investigate the use of this technique, the paper will deal with the evaluation of evidence by the judge, in addition to the fundamental norms of the Code of Civil Procedure that support the use of dynamic distribution for the construction of truth in the process, given the contradictory and cooperation. Parallel to this, there will be an examination of the rules of presumption and of tax liability in order to demonstrate the need for the production of evidence by the Treasury to confirm the tax legal fact, besides highlighting the importance of the prior contradictory to support the redirection of tax execution. Therefore, it is verified that absent one of these factors, the dynamic distribution of the burden of proof should be applied in the tax process.
A eficácia das redes de cooperação jurídica direta no combate á corrupção transnacional e sua concretização pelo sistema processual brasileiro : notas sobre a Operação Lava Jato
(Universidade Federal do Espírito Santo, 2019-05-24) Gubert, Paula Soares Campeão; Polido, Fabricio Bertini Pasquot; Moschen, Valesca Raizer Borges; Gaspar, Renata Alavres; Carvalho, Thiago Fabres de
The studies were developed in the area of Justice, Process and Constitution concentration, in the research line of Process, Constitutionality and Protection of Existential and Patrimonial Rights of the Masters in Procedural Law of the Federal University of Espírito Santo, from the contributions of the Research Groups entitled "International Law and the Maze of Codification" and "Limits and Extension of the Brazilian International Jurisdiction". Based on the premise of the corruption problem, understood as a phenomenon of public service marketing in order to obtain undue advantages, it is sought to combat the expansion of its practices in the globalized community, under the procedural point of view of international legal cooperation. By means of the inductive method of investigation, the factual clipping extracted from Criminal Action No. 5036528-23.2015.4.04.7000, in process before the 13th Court of the Federal Judicial Branch of the State of Paraná, is adopted as a particular reference, with the purpose of verifying the application of transnational networks to support the exchange of data, information and evidence, in casu. From the analysis of the concrete case, it is proposed the construction of a general knowledge about the effectiveness of the application of instruments of criminal cooperation to deal with corruption in a transnational dimension and its implementation by the Brazilian procedural system, with special focus on direct cooperation networks. Based on the line of thinking of Transnational Legal Pluralism, the concept of Global Law based on the formation of discourses and communication networks is adopted, while the reflection of arrangements in which legal multiplaces are associated and normative bundles emitted from diversified bodies communicating, integrating a spectrum of transnationality. The study is based on the collective action of transnational networks and cooperative arrangements between national regulatory authorities. Furthermore, the bases are laid specifically on the necessary respect for the fundamental rights of the human person and their assumption as the democratic limit and paradigm of the work of cooperation networks to combat criminal practices in today's global community. Finally, notes will be made on whether or not to confirm the research hypothesis, in order to determine if such networks are effective in the fight against corruption and if they are implemented in the Brazilian procedural system, drawing the respective notes on the application of cooperation networks on “Lava Jato” operation.
A eficácia erga omnes da coisa julgada no mandado de segurança coletivo impetrado pelas associações civis para defesa de direitos individuais homogêneos
(Universidade Federal do Espírito Santo, 2013-05-27) Ferraz, Claudio Ferreira; Rodrigues, Marcelo Abelha; Esteves, Carolina Bonadiman; Jorge, Flávio Cheim
This study aims to identify the subjective limits of res judicata on the judgment of collective writ of mandamus filed by civil association. It was first described the legal nature and the reasons of the legitimacy conferred to civil associations for bringing collective actions, going up to the analysis of the sources of collective writ of mandamus, including legal rules and principles. We also analyzed the characteristics of the collective writ of mandamus, for purposes of avoiding confusion between it and an individual writ. After it, we suggested the correct interpretation of Article 22 of Law No. 12.016/09, using various methods of legal interpretation, ending with the analysis of the case law relating to the topic and opinion on the trend of the superior courts on matter. It was concluded in the study that the res judicata in collective writ of mandamus filed by civil associations produce erga omnes effects, to reach all members of the harmed class, regardless of membership.
A eficiência dos meios executivos na tutela processual das obrigações pecuniárias no Código de Processo Civil de 2015
(Universidade Federal do Espírito Santo, 2018-05-03) Rosado, Marcelo da Rocha; Mazzei, Rodrigo Reis; Rodrigues, Marcelo Abelha; del Monego, Hermes Irineu; Neves, Daniel Amorim Assumpção
The purpose of this dissertation is to investigate how the efficiency of executive means can be achieved for the protection of pecuniary obligations in the Brazilian procedural system, based on dogmatic proposals aimed at the fulfillment of the general clause of effectiveness of article 139, IV, of the Civil Procedure Code of 2015. The study presents proposals for understanding the typical and atypical model of executive means in the procedural system, taking as a premise the need to shape a system that is not only complete but also efficient for the protection of these obligations, based on the necessary interaction of the general clause with other legal norms of the system, especially those that convey the principles of efficiency and the lowest onerosity. It is understood that the model devised by the CPC/15 for the protection of credit is a new model, which also demands new ways of thinking, overcoming ideas sedimented under another context, which no longer meet the real needs of the executive protection of pecuniary obligations. For the development of the theme, doctrinal premises are reaffirmed on the understanding of the execution process based in the identification of executive protection as a fundamental right, which is a crucial point of support for the reflections on how executive acts should be applied and how the interests in tension in the execution must be weighed. It is exposed how should be the judicial action to build the efficient legal solution without sacrificing legal security, considering the inherent risk of a procedural system that contemplate the atypicity of executive means. It is also possible to identify, from a theoretical framework on the techniques that the legal system can use to achieve its results, which are the measures that can be adopted for the implementation of the executive judicial protection, followed by proposals for implementation efficient analysis of the atypical executive means, with the analysis of the controversial doctrinal positions on the execution of the executive general clause in the execution of pecuniary obligations. Finally, a critical analysis of judicial decisions on the subject is made, and the final conclusions of the research are presented.
A estabilização da tutela antecipada antecedente contra a fazenda pública
(Universidade Federal do Espírito Santo, 2017-06-14) Lessa, Flávio Romero de Oliveira Castro; Jorge, Flávio Cheim; Rodrigues, Marcelo Abelha; Rodrigues, Marco Antônio dos Santos
The main purpose of this dissertation is to investigate the possibility of stabilizing the effects of the antecipated judicial protection decision, according to the new provisions in articles 303 and 304 of the Code of Civil Procedure of 2015, however, not in general, but in the specific hypothesis in which the grant of the measure is filed against the Public Treasury. It starts from a normative perspective of the institutes. It is analyzed if there is, and, if so, under what conditions, the compatibility of that stabilization with the material and procedural prerogatives conferred to the Public Power. The work is divided in two parts: in the first one, the main characteristics that surround the stabilization institute are exposed; in the second part, the stabilization with the specific focus in the Public Treasury is studied. Three hypotheses are presented as possible obstacles to stabilization: (i) the principle of the unavailability of the public interest; (ii) the doctrinal recognition of a single legal regime formed between stabilization and monitory action (microsystem), hence the incidence of the shipment required also as a condition for stabilization, even though it is legally provided, specifically, only for the monitory action (art. 701, § 4º, CPC/15); and (iii) the legal exigency of the shipment required as a condition for stabilization, taking into account only its general rule (art. 496, CPC/15), regardless of any consideration of the specific rule contained in article 701, § 4º, CPC/15. It is concluded, after removing the three mentioned hypotheses, by the possibility of stabilization of the antecedent judicial protection against the Public Treasury. Finally, in a separate chapter, we investigate the importance of stabilization in the Special Courts, and, in particular, we conclude that it is impossible, given the peculiarities of the summary procedure.
A estrutura lógica das decisões judiciais : a fundamentação judicial como forma de controle da carga valorativa do Direito
(Universidade Federal do Espírito Santo, 2018-04-27) Barbosa, Vitor Carvalho; Moussallem, Tárek Moysés; Zaneti Júnior, Hermes; Mendonça, Cristiane
A força normativa da súmula vinculante no processo decisório do juiz
(Universidade Federal do Espírito Santo, 2011-04-29) Lacerda, Allan Dias; Castellanos, Angel Rafael Mariño; Moussalém, Tárek Moysés; Jeveuax, Geovany Cardoso
This dissertation deals with the attitude of the magistrate before the binding judicial precedent1 , showing how the magistrate must act before a possible contradiction between the binding judicial precedent and other normative acts. To do this, makesis an analysis of the legal rule, studying its meaning, and their conditions of existence, validity, in force and effectiveness. Investigates the concept of legal system, its unity and its hierarchical structure, which requires a consistency of its elements to get working properly. Also addresses the issue involving the Supreme Court, stating that it should be seen as a Constitutional Court in contemporary society. It shall, moreover, the concept of binding judicial precedent and its legal status, saying that it is an interpretive rule of law and discussing its history, beyond its main objectives, among which may be cited as legal certainty and speedy trial. Analyzes the provision dealing the binding judicial precedent laid down in Article 103-A of the Constitution and the law 11471/2007, especially those that set their requirements and their scope. It argues that the magistrate keeps intact his hermeneutic powers before the binding judicial precedent. In the end, deals with the conflict between the binding judicial precedent and other rules in the system, saying what should be the attitude of judges in each situation.
A função criadora do juiz : do implemento dos poderes judiciais ao estabelecimento de uma margem de segurança para as decisões inovatórias
(Universidade Federal do Espírito Santo, 2011-04-05) Moro, Cássio Ariel; Zaganelli, Margareth Vetis; Rabelo, Manoel Alves; Krohling, Aloísio; Soares, Ricardo Maurício Freire
The Constitutional State of Law has assumed several responsibilities that are beyond the mere pursuit of pacification of conflicts, defense of property and circulation of wealth, fundamental questions of the traditional Liberal State. The State began to worry about such as social and collectivity interests, environmental, consumer’s, children’s, worker’s and women rights. Parallel to this major State concern, the society grew, it has increased and developed and therefore each day new and unexpected situations appear which need the State support, without, however, get an immediate response from the legal system. Thus, the Legislature failing to give the necessary and immediate support to such questions, the Judiciary Power suppletive is called to give an efficient and prompt solution, supplanting the legislating activity, creating standards and acting as that unit of Power. Nevertheless, abusive use of creative activity, which invades the playing field of another Power, may result in an imbalance in the republican principles. In order to avoid this occurrence, the Judiciary Power must be aware to certain themes of security in their creative decisions, ensuring its authority without exaggeration, equating security with the effectiveness of legal creative adjudication.
A função jurisdicional na ótica de Ronald Dworkin
(Universidade Federal do Espírito Santo, 2012-05-18) Kock, Angela Baptista Balliana; Luchi, José Pedro; Jeveaux, Geovany Cardoso; Moreira, Nelson Camatta
This dissertation presents the legal theory built by Ronald Dworkin, American philosopher often cited as grounds for the court performance model called legal activism and similar slopes. Exposes the thesis rights, the role of precedent, the influence of political morality, considerations concerning the possibility of obtai ning a correct answer for difficult cases and with special attention, the concepts formulated by Dworkin to rules, principles and policies, seen as essential for setting the parameters for the exercise of the creative power in the judicial sphere.
A função social do processo no estado democrático de direito à luz da teoria dos princípios de Ronald Dworkin e da teoria do discurso de Jürgen Habermas
(Universidade Federal do Espírito Santo, 2008-08-15) Malaquias, Roberto Antônio Darós; Luchi, José Pedro; Zaganelli, Margareth Vetis; Pinho, Humberto Dalla Bernardina de
The social role of a legal process is a very important issue to society, but it is little discussed concerning practical results inserted in the population’s daily lives. This is where authorities of constituted powers have treated indifferently the disappointing verification that the result of procedural activity has been insufficient towards the social effect goal. This suppresses the reason of being of this instrument, that is, its unique social relevance concerning pacification of the community. This study presents a theme that encourages the reader to “dive” into a discussion addressing the understanding of the actual role of legal processes in the Democratic State of Law in light of the Theory of Principles by Ronald Dworkin and the Discourse Theory by Jürgen Habermas. The study does not aim at comparing these theories or analyzing specific procedural institutions, but demonstrating the contributions achieved and their potentials through the reading of these two philosophical currents, focusing on the procedural effectiveness. It makes a parallel analysis of individuals’ rights to access justice, searching for harmony in the community they live and perform their activities. Ronald Dworkin presents the Theory of Principles, which approaches several central aspects of problems in constant analyses by specialists in contemporary law. These include the elaboration of the concept of law, its application processes and validity, basing its thesis on a juridical system known as “common law”. Jürgen Habermas presents the Discourse Theory, which aims at clarifying which conditions are necessary for a democratic legitimation of the law. His theory has normative pretensions. It tries to transcend the negative aspect of modernity to implement a democratic project in the extent of law, that is, its critics to Luhmann, Dworkin and Alexy’s theories, including the role of law, of the public sphere and of the political system, are reconstructed in the milestone of Discursive Theory. It is concluded that we need to search for a new profile of speed trial in procedural law in order to respond to social needs without messy, precipitate procedures or summary trials, respecting constitutional warranties and presenting the two philosophical currents analyzed in this study.

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