Name: PEDRO LUBE SPERANDIO
Publication date: 24/06/2020
Advisor:
Name |
Role |
|---|---|
| GILBERTO FACHETTI SILVESTRE | Advisor * |
Examining board:
| Name |
Role |
|---|---|
| GILBERTO FACHETTI SILVESTRE | Advisor * |
| THIAGO FERREIRA SIQUEIRA | Internal Examiner * |
Summary: The dissertation addresses the instructive powers of the judge,
within the scope of civil law procedures, and their (in)compatibility with
impartiality for judgment. The aim, first of all, is to rethink the
legitimacy of the initiative and the evidence production by the judge
nowadays conferred infra-constitutionally. From the perspective of
garantismo processual, the problem that is identified in the
hypertrophy attributed to the jurisdiction by the publicist orientation,
which gives rise to evidential judicial activism. Thus, at first it has been
presented the main debates, dichotomies and criticism that involve the
analysis of the judge's powers in the direction and instruction of the
process, in order to establish the fundamental theoretical frameworks and
premises that support the study of the theme. Second, is developed a defense,
on the dogmatic level, of the main reason for the impossibility of
instructive powers of the judge, which is his inevitable breach of
impartiality, in all his (autonomous) aspects: objective-functional,
objective-cognitive and subjective-psychological. Finally, third, we present
some appointments for solutions to the problems identified in the judicial
evidential initiative, either lege lata or lege ferenda. In general, from the
perspective of the garantista theory, the idea is to expose dogmas and
ideological biases that sustain legally, doctrinally and jurisprudentially
support the judge's instructive powers, in order to enable a review of the
pragmatic among legal professionals. The study, then, seeks to demonstrate
the hypothesis that, in the current constitutional process model, the
activity and probative responsibility need to be solely of the procedural
parties, concluding, therefore, by the unconstitutionality and need to
contain any ex officio instructional initiative, for compromising the essence
of the jurisdiction and the process, which presupposes the archifundamental
guarantee of impartiality
