Name: HENRIQUE ZUMAK MOREIRA
Type: MSc dissertation
Publication date: 04/07/2019
Examining board:
Name |
Role |
|---|---|
| RICARDO GUEIROS BERNARDES DIAS | Internal Examiner * |
Summary: 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.
