A audiência de justificação nas ações possessórias: uma releitura da técnica de justificação prévia para a delimitação da participação do réu
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Data
2025-05-26
Autores
Simões, Eduardo Figueiredo
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Universidade Federal do Espírito Santo
Resumo
Subject: The justification hearing in possessory actions, particularly regarding the defendant’s participation. This study seeks, through a reinterpretation of the technique of “justificação previa” (preliminary justification), to examine the justification hearing in possessory actions considering the Article 562 of the Brazilian Code of Civil Procedure, in order to define the scope of the defendant’s role during the proceeding. Issue: The lack of uniformity in Brazilian legal literature and judicial practice concerning the limits of the defendant's participation in the justification hearing, a situation that undermines the proper application of the technique and, consequently, weakens the procedural protection of possession. Research Question: What are the limits of the defendant’s participation in the preliminary justification hearing conducted in possessory injunctions? Methodology: Documentary analysis of legal sources, including scholarly literature, domestic and foreign statutory provisions, and case law from several State Courts of Justice, the Superior Court of Justice, and the Federal Supreme Court. The study adopted a deductive approach, starting from generally accepted premises, related to specific ones, thus enabling the formulation of conclusions through descending logical reasoning. Results: The research demonstrates that, based on the analysis of the Fundamental Rules of Civil Procedure and the critical examination of the four main dogmatic theses regarding the defendant’s role (restrictive, moderate, permissive, and inverse), the defendant’s active – though limited – participation is compatible with the technique of preliminary justification and aligns with the fundamental procedural norms. Based on this finding, a three-phase model (for ordinary possessory actions) and a four-phase model (for collective possessory actions) are proposed for structuring the justification hearing. Contributions: This dissertation contributes to the improvement of the use of preliminary justification as a procedural technique by systematizing its structure and functioning. It proposes a procedural model for organizing the justification hearing, providing greater legal certainty to encourage its use – still sporadic in current judicial practice – and thus fostering a more efficient justice system, particularly in the procedural protection of possession.
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Justificação prévia , Ações possessórias , Código de Processo Civil , Participação do réu , Técnica processual , Preliminary justification , Possessory actions , Brazilian Code of Civil Procedure , Defendant’s participation , Procedural technique