Name: MARCILEY BOLDRINI DA SILVA
Publication date: 19/05/2017
Examining board:
Name |
Role |
|---|---|
| GEOVANY CARDOSO JEVEAUX | Internal Examiner * |
Summary: The premise of this dissertation is the concept of the autonomous juridical relationship substantiated from the right to action, to defense and the power of the state to impose itself to the parties, a moment when a procedural relationship is set to connect the plaintiffs to court concurrently, even if independently, a thesis initially developed by Oskar Von Bülow. Furthermore, it points to the existence of a progressive juridical relationship between the subjects in the legal proceedings, which is stabilized in a triangular structure, as advocated by Adof Wach, since the state prohibits private parties from making justice and grants judges their discretion as a third party strange to the dispute. This procedural structure is possible due to communication of procedural acts, instruments able to inform the parties about the course that legal proceedings take. Among these acts, special attention should the paid to summons. The latter is seen as essential element to configure the triangular relationship of legal proceedings, because it integrates defendants into the proceedings, allowing them to exercise their rights to defense. This study also analyzes the modalities of summons and the ways through which it is presented in penal proceedings. It comprises the legal evolution and the effects each alteration has had in the legal text, including here the internalization of pre-scheduled court summons, an institution deriving from civil proceedings, in the criminal sphere. In due course, this study traces a parameter between the regulations set by the 1973 and 2015 Code of Civil Procedure, and it faces the doctrinal positions regarding the constitutionality of this innovation by raising arguments for and against applying this measure. Finally, the result of this dispute is the agreement to the constitutionality of this act, provided that legal requirements are observed. This posture was also adopted by the Supreme Federal Court in the judgment of Special Appeal no. 635.145/RS, whose votes were submitted to analysis. This dissertation also addresses the issue of applying the pre-scheduled summons at Special Criminal Courts, a situation still not defined by the Supreme Court, but which has been deemed incompatible according to the objectives intended by the infra-constitutional legislation.
Keywords: Juridical Procedural Relationship. Triangular relation. Pre-scheduled Court Summons. Constitutionality.
