PROCEDURAL FLEXIBILIZATION AND THE TRANSPORTATION OF TECHNIQUES IN RENTAL ACTIONS
Name: LUAN THEODORO MACHADO
Publication date: 04/09/2023
Examining board:
Name |
Role |
|---|---|
| FLAVIO CHEIM JORGE | Advisor |
Summary: This study undertakes the examination of urgent provisional relief and the transference of procedural techniques within the realm of tenant actions. Such actions are stipulated under Law No. 8,245/91, governing substantive and procedural facets pertaining to urban lease contracts. Within this context, Tenancy Law establishes a specialized procedural framework for the adjudication of tenant actions, which operates independently of the Code of Civil Procedure, except in cases of complementarity. However, despite the legislature's provision of a specialized procedure tailored for the regulation of landlord-tenant relations, instances arise wherein adherence to this unique procedure may prejudice the involved parties, particularly in eviction claims. Consequently, it posits the desirability of procedural flexibility as envisaged in the lease law, allowing for the application of the general procedure in select cases. The 2015 Code of Civil Procedure (CPC), significantly, places a strong emphasis on the efficiency and malleability of procedural actions, empowering both the law, the judiciary, and the litigants to adapt certain procedural rules to better suit the particularities of individual cases. In this context, we endeavor to extend this principle to eviction claims, enabling the malleability of the special procedures delineated in the Lease Law to align with the interests of the parties and facilitate the pursuit of tailored resolutions. This proposition is tenable in light of the CPC's provisions, which offer techniques capable of streamlining lessee protection without compromising legal certainty and procedural predictability. Notably, procedural legal transactions allow the parties themselves, despite their status as litigants, to actively participate in the process with the objective of reaching a mutually agreeable and equitable solution. To explore this concept further, a qualitative research approach was employed, founded on an extensive review of the gathered bibliographic and documentary resources. The bibliographic analysis entailed a comprehensive study of pertinent books, theses, dissertations, and scholarly articles. Additionally, hypothetical cases presented in the literature and practical scenarios derived from legislative examination were scrutinized. The research methodology adopted a deductive approach, recognized as the most apt for achieving the stipulated research objectives. Consequently, in response to the identified issue – the feasibility of applying procedural flexibility and transposing procedural techniques to tenant actions – a thorough examination of potential legal techniques was undertaken, culminating in the formulation of a theoretical model with practical applications. In conclusion, it is evident that the 2015 CPC, while not trailblazing in this regard, plays a pivotal role in propagating the concept of procedural flexibility. Moreover, it underscores that this flexibility can operate reciprocally, allowing for the customization of legal protection to harmonize with the parties' objectives, all while preserving the integrity of legal certainty and procedural predictability.
Keywords: Procedural flexibility, Transference of procedural techniques, Lease law, Urgent provisional relief, Eviction claim, Atypical contracts procedure.
