A cooperação como modelo processual civil

Abstract

The present dissertation intends to deal with the cooperative process model in the sphere of Civil Procedural Law. For this, a basic structure of the theory of the right of jusnaturalism to neo-constitutionalism is analyzed, in order to expose the valuation and the influence of the cultural throughout the times in the juridical order. The distinction between the theory of principles and the concepts of rules, principles and rules, as well as the general clause, and the indeterminate legal concept, are understood in order to understand the importance of each concept and the employment in the planning. It evaluates the juridical traditions eternalized by the systems of the common law and the civil law, and the influence of these systems in relation to the Brazilian order, which before the new Code of Civil Procedure of 2015, emerged as hybrid. With the cooperative process model, the Democratic State of Law is a symbol of participatory democracy, social solidarity, due process of law and the use of the adversary, being the magistrate in this model, subject to the contradictory. Faced with the change in working methodology advocated by the Civil Procedure Code of 2015, it analyzes the existing procedural models: adversarial (isomeric or symmetrical), and inquisitive (hierarchical or asymmetric). The cooperative model emerges as the one in which it inserts a procedural dialectic, in addition to the contradictory one. The magistrate is considered as parity in relation to the parties and enables the exercise of participatory democracy, and as far as its decision is concerned, it is verticalized as in the asymmetric model, for these reasons it recognizes it as a hybrid. The parties, in all proceedings, are subject to the norms of conduct, urbanity, ethics and mainly good faith. This sui generis model proposes a work community and intends to sustain a response to society by the desire for justice and effectiveness in the provision of judicial protection.