PROCEDURAL GOOD FAITH AND PRECLUSION: THE INSUBSISTENCE OF THE THESIS OF “POCKET NULLITY”.
Name: FELIPE SARDENBERG GUIMARÃES TRÉS HENRIQUES
Publication date: 07/06/2024
Examining board:
Name |
Role |
|---|---|
| FLAVIO CHEIM JORGE | Examinador Interno |
| GILBERTO FACHETTI SILVESTRE | Presidente |
| HEITOR VITOR MENDONÇA SICA | Examinador Externo |
| THIAGO FERREIRA SIQUEIRA | Examinador Interno |
Summary: Objective: This research delves into the realm of procedural invalidities in Brazilian civil procedure law, examining the role of procedural good faith and the legal framework of procedural preclusion as outlined in the Civil Procedure Code. It aims to assess the feasibility of the “pocket nullities” thesis, initially formulated by the Third Chamber of the Superior Court of Justice. Issue: The application of the “pocket nullities” thesis implies that all procedural flaws are subject to preclusion, primarily due to procedural good faith (Article 5) and cooperation (Article 6). Problem: Can the general principle of procedural good faith prevent parties from raising, and judges from recognizing, procedural flaws not raised at the appropriate procedural juncture? Methodology: This study employs a qualitative documentary analysis of legal literature, the Civil Code, the Civil Procedure Codes of 1939, 1973, and 2015, Regulation No. 737 of 1850, and rulings from the Third and Fourth Chambers of the Superior Court of Justice. Using a deductive approach, it starts from major premises considered true, which are then subjected to minor premises, culminating in a logically descending movement to propose a thesis on the insubstantiality of “pocket nullities”. Results: The “pocket nullities” thesis lacks support in Brazilian civil procedural law. The research found that its application conflicts with the legal regime of preclusions and procedural invalidities, as well as with principles highlighted in legal literature, by the Superior Court of Justice, and within procedural law itself. Contributions: In addition to demonstrating the inadequacy of “pocket nullities” in optimal procedural practice, the research offers a proactive thesis suggesting their redundancy in addressing belated claims of procedural invalidities. From a practical standpoint, the study identifies existing legal mechanisms to address late claims of nullity. If a procedural act fails to achieve its purpose or causes harm to the parties or the administration of justice, nullity should be decreed, even if not raised at the first opportunity for the party to express themselves in the proceedings. From a societal perspective, this ensures the delivery of judicial services to litigants while safeguarding legal certainty and preventing interpretive abuses aimed at circumventing applicable normative formulations through vague syntagms.
