Name: ALINE DE MAGALHÃES GRAFANASSI MOREIRA
Type: MSc dissertation
Publication date: 17/06/2020
Advisor:
Name |
Role |
|---|---|
| THIAGO FERREIRA SIQUEIRA | Advisor * |
Examining board:
| Name |
Role |
|---|---|
| THIAGO FERREIRA SIQUEIRA | Advisor * |
| TRÍCIA NAVARRO XAVIER CABRAL | Internal Examiner * |
Summary: The research is dedicated to investigating the application of the fundamental
rule of the primacy of the resolution of the merits, provided for in article
4 of the 2015 Code of Civil Procedure, in the admissibility judgment of the
initial petition, specifically in the procedural assumptions, the conditions
of the action and the hypotheses ineptitude of the initial petition. It
identifies, based on the heuristic approach of Humberto Ávila, embodied in
the premise that legal devices can generate more than one normative species
(rules, principles and postulates), that the text provided in that article
works as a reference point for the construction of a principle, of an
imposing character and not just a recommendation, that gives rise to a series
of legal rules that complement its content. Notes that this
political-normative option imposes on interpreters that make the rules
governing the admissibility judgment of the initial petition compatible with
the primacy of resolving the merits, so that, whenever possible, the
procedural defects found are overcome, encouraging and promoting their
correction, so that it is possible for them to analyze the merits of the
claim and resolve the conflict raised by the parties. It notes that the
procedural legislator also established that the decision on the merits to be
made in the process must be the result of a working community between the
parties, the judge and all those who in any way act in the process. Notes
that the combination of the principles of cooperation and contradiction
results in the need for conflict resolution to always assume the
configuration of procedural dialogue, in the context in which any and all
decisions made by the Judiciary, including those related to the removal of
vices procedures to face the merits of the claim. Notes that it is possible
to make the principle of primacy of merit resolution compatible with the
principles of cooperation and contradictory, so that the legal and normative
impositions to which the judges remove procedural defects are observed
concurrently when this is necessary for adequate protection. The merit of the
claim (purpose of the process), as well as preserve, in this context, the
dialecticity of the process, in order to avoid the making of surprise
decisions.
Key words: Primacy of merit resolution. Judgment of admissibility of the
initial petition. Procedural assumptions. Conditions of the action.
Ineptitude of the application
