ORIGINAL ARTICLE
FRIGHETTO, Édio [1] , SOUZA, Maria Carolina Rosa de [2]
FRIGHETTO, Édio. SOUZA, Maria Carolina Rosa de. The importance of constitutional principles in civil proceedings in the face of computerization of data for the optimization of the legal-procedural relationship. Revista Científica Multidisciplinar Núcleo do Conhecimento. Year 06, Ed. 02, Vol. 12, pp. 77-101. February 2021. ISSN: 2448-0959, Access link: https://www.nucleodoconhecimento.com.br/law/constitutional-principles
ABSTRACT
The fundamental principles enshrined in Article 5 of the Federal Constitution of 1988 are the pillars that underpin the entire procedural structure in the Brazilian jurisdiction. Given the constitutional perspective in coalition with the 2015 Code of Civil Procedure, the scope of this article aims to describe the fundamental precepts for the operationalization of procedural norms, addressing the relevant function of electronic judicial process as a guarantee of rapid promotion in the judiciary. It is punctuated, then, that the whole of society has ensured the prerogative of access to justice, according to this, the civil process is the instrument by which relations between individuals are resolved by the State promoting the functions essential to justice, applying the law accurately and impartially in order to promote the protection of interests. The law is dynamic and needs to follow the social evolution, for this reason, the electronic instrumentalization of the process on the platforms of the courts meets the order to expedite the resolution of bottlenecks and assert to the community that the procedural route is performed effectively. Thus, with the convergence of efforts, in order to make the judiciary less time consuming and engaged in monitoring trends, justice needs to be performed more promptly so that the ideals of the Democratic Rule of Law can then be fulfilled.
Keywords: Fundamental Rights, Electronic Instrumentalization, Judiciary, Civil Procedure, Society.
INTRODUCTION
In today’s times of cultural rebirths, a paradigm shift is punctuated in which gradually the cult of the cold letter of the law gives way to the applicability of the principles. At this juncture, the fundamental rudiments are broad and open a range of possibilities for the benefit of the law to concrete cases, strife with the efficient interpretation and receptivity of implementations in order to strengthen access to justice with the appropriate and precise procedural means for the active and passive poles aligned with the Federal Constitution of 1988 (CF/88).
In view of this, the judiciary must be provoked to provide support to those who come to get it. Thus, magna carta in article 5 establishes a compilation of precepts basing the judicial exercise to resolve conflicts and prevent threats of rights. This means that legal science, especially in the procedural area, establishes a framework of balance and safeguarding of social peace with the support of the State in the realization of prerogatives through public justice.
It is providential to highlight that the right is dynamic, that is, it needs to follow the advances of society, the new demands and trends that are constant in the universe of legal facts. Therefore, the general objective of the study is to describe the fundamental principles for the operationalization of procedural norms and to address the relevant function of electronic judicial process as a guarantee of rapid promotion in the judiciary.
Thus, having as a starting point the CF/88 in alliance with the Code of Civil Procedure 2015 (CPC/2015), the ideals that legitimize the civil process are addressed in the theoretical framework; the procedural instrumentalization between the parties and the electronic judicial process as an optimized resource in the legal procedures. Therefore, the methodology used is bibliographic based on legislation and doctrines.
Thus, the protection of the interests of the community and individuals, takes place through action and defense through the techniques of execution of the rules and the preservation of the driving foundations of the common good. Thus, this article aims to help the operators of the right to understand how much more comprehensive the performance of the judiciary in responding satisfactorily to the longings, favorably will succeed the effectiveness in resolving divergences.
1. THE CONSTITUTIONAL PRINCIPLES UNDERPIND BY CIVIL PROCEDURAL LAW
All science has in its genesis principles that support the development and dissemination of results. In the legal sphere, the principles assume the position of grandeus, because it is the reason why individual and social prerogatives are realized by access to the judiciary.
Thus, the foundation of the State imbued with legality and democracy, is the inexorable guarantee of accepting the requests of all citizens without distinctions (including the needy) so that the solution of disputes is performed by a preconstituted judge, boasting confidence and configuring the process as an instrument of achievement for the jurisdiction to be effective through communication between the subjects and the primacy of balance before the endless emergence of actions. To this end, in the sense of the proceduralist Didier Jr (2018 p.64-65):
The rules establishing fundamental rights have immediate application (Art. 5, § 1, CF/1988), obliging the legislature to create procedural rules in accordance with them and also appropriate to the protection of active legal situations (especially fundamental rights). […] The process is a kind of legal act. This is a complex legal act. The procedure falls within the category “successive act-complex formation”: the various acts that make up the normative type take place in time, since it is a set of legal acts (procedural acts), related to each other, which have as a common objective, in the case of judicial proceedings, the judicial provision.
In this logic, constitutionalism is of no importance in justifying procedural discipline. Therefore, the fundamental rights positive in the CF/88 in corollary with the CPC/2015 bring to light the legal system the following precepts: inexception of judicial power, due process, isonomy, contradictory and broad defense, lawfulness of evidence, natural judge, official impulse, publicity of procedural acts, reasoning of judicial decisions, sealing of surprise decision, reasonable duration of the process, cooperation, good faith and double degree of jurisdiction.
The principle of inexception of jurisdiction has its fulcrum in Article 5, XXXV of CF/88[3], which is the prelude that asserts the entry into the judiciary and consequently the procedural path, thus outperforming the action and defense (RODRIGUES; LAMY, 2016, p.206). Therefore, all subjects in the individual and collective condition undoubtedly have the entry into jurisdiction in the events of transgressions and rights risks to actually fulfill citizenship with righteousness. Therefore, when a legally protected good is tainted and concomitantly someone suffers losses, the process manifests itself as an indispensable mechanism for the scientificization of facts.
The fundamental rights extend the escort of the process, and this means that both the plaintiff (the one who enters with an action) and the defendant (the accused party to provide clarifications), has the possibility of compensation for damages and manifestation of the defense before the State with effective capacity to assess and solve issues. By virtue of the principle of indeclinability of judicial control, based on the doctrine of Pinho (2018, p.102), the aforementioned rudiment imports in the trustworthy access to justice depending on the autonomy of the private or diffuse will. Still Pinho (2018, p.102), emphasizes that the order proposes alternative methods for the resolution of conflicts through mediation and arbitration (art. 3, §§ 1 to 3 of the CPC/2015)[4] so that agents can consensually displeasure their claims in an agile and decongested way the judiciary. Therefore, in addition to the Major Law together with the Procedural Diploma, affirming that justice is a prerogative to connect individuals to the legal scope, it is also imperative to provide extra-procedural activities so that the purpose of the law is achieved.
Due process is at its core in Article 5, LIV of CF/88[5], first, by noting that the party assigned to compromise retractions has the right to defend itself, justify its conduct and even prove innocence before it becomes final. Thus, this principle is configured as an anchor in the procedural cycle, since it aggregates all the principles sopesados in this topic in order to the process unfold proportionally with the law. From the perspective of Misael Montenegro Filho (2018, p.23), “due process is present from the formation of the process until its last act”. This demonstrates that the subjects retain convenience to provide evidence that can support the sentence whether of merit or termination.
Therefore, no case can be tried without the opportunity for the party to corroborate its reason so that due process is observed at all stages and thus, justice is effective. In this perspective, Dellore et al (2018, p.75), emphasize the fair process as the dynamic of the judicial claim in front of the incessant variations that require from the jurisdiction a response compatible with the interests of the agents. Thus, everyone can have a relevant conclusion for each action and compensation of the poles in the proportion fitted, thus succeeds the control of constitutionality and the application of discretion in order not to occur abuse of power and not the adoption of undue advantages by the author component, because the law must be applied with reasonableness to predominate the timely solvency of the clashes.
Isonomy is added to the caput of Article 5 of the CF/88[6], being the guarantor of equality of all before the law. However, equality is seen in practice as a fiction, being perfect and sublime in the legislative text, given this, it is necessary that isonomy be applied in the judiciary from a relative perspective, that is, of a realistic nature depending on each case so that proportionally comes procedural equity with equal treatment between equals, and counterbalance, intervenes the treatment with the unequal in the same level of inequality (BONICIO , 2016, p.140).
In this tuning path, the ordering of the burden of proof is in force, in which the possibility for both parties to prove their conduct is presented, in the same step that the parity of weapons takes place, to sustain the uniformity of evidence (art. 7 CPC/2015)[7]. Thus, in the procedural course, the judge summons the defendant to prove his right of defense in contrast to the plaintiff, and this has the prerogative to bring the necessary evidence for his question to be decided.
Following the logic of harmony preached by the Major Law, the principle of contradictory and broad defense declares under Article 5, LV that “the litigants, in judicial or administrative proceedings, and the accused in general are assured the contradictory and broad defense, with the means and resources inherent to it”. This attests that the plaintiff and the defendant have the right to challenge each other, presenting their point of view with reply and rejoinder, and are still aware of all the protocols of the process participating fully to enjoy the defense and appeal concerning in the statement of decisive evidence in the verdict.
In line with the constitutional text, Article 9, caput, of the CPC/2015 highlights the following: “no decision will be made against one of the parties without it being heard in advance”, so it is evident that the procedural law establishes a strategic plan for offenders and injured parties to respond legally in the presence of a competent body that assesses the context of the action before deferring an opinion. Thus, Rodrigues and Lamy (2016, p.233) explain that the guarantee of the contradictory and broad defense stifiles the dialogue between the judge and the litigants through the citation, subpoena and hearings. Disart, judicial decisions assume legitimacy respecting the opportunity of individuals to manifest themselves in degree of equality and probity.
Starting from the proposition of the contradictory and the broad defense, the lawfulness of the evidence is inescable. This means that it needs to develop by the sieve of the law and evidence collected by shady devices cannot be accepted. The inadmissibility of unlawful evidence is disciplined in Article 5, LVI of CF/88[8], inducing that any production of evidence that harms the dignity of the human person and will cause serious harm to those involved, is not valid before the jurisdiction. In the words of Tescheiner and Thamay (2019, p.106): “truth is not sought at any price; not every illicit must necessarily be punished; the author’s interest overlaps the defense of the integrity and privacy of the defendant’s person.”
Much more than proving to those who assist you the reason, the case needs to be based on the certainty that the law will be applied, because the evidence belongs to the proceedings and not the parties. Moreover, it is important to emphasize that the actors of the judicial dispute keep the perk of not producing evidence against themselves and only the law has the strength to point out the effectiveness of a judgment endorsed suitacity through the effigy of the magistrate.
The natural judge emanades from the Democratic Rule of Law. This prelude stipuorders that cases are tried by a competent authority and empowered for compliance with jurisdiction (Art. 5, XXXVII and LIII of CF/88)[9]. As a result of this principle, the court must exist before the occurrence of the facts, being deplorable the creation of judgment after the events. Thus, citizens rely on the security of cases to be evaluated by a fit judge, approved in a public tender and equipped with impartiality to examine the causes.
In this context, the Judiciary is broken down by powers, since not all magistrates are allowed to judge cases (SOUZA et al, 2019, p.119). It should be noted that the Supreme Federal Court (STF) although it has jurisdiction throughout the national territory, it retains constitutional matters; each region of the country has the Federal Regional Courts (TRF’S) that comprise the issues related to the Federal Court (for example: the TRF-4th Region with administrative headquarters in Porto Alegre – RS, which covers the States of Paraná, Santa Catarina and Rio Grande do Sul); each federative member has its Court of Justice (TJ – State Court) and each district within the respective state extension, it is used as a forum to deliberate the acts succeeded in the relevant space. Then, according to the understanding of the Marioni authors; Arenhart and Mitidiero (2016, p.165), within the judicial organization chart, justices are divided into specialized and common, therefore, each judge acts within his fora and court, not interfering in other cases other than those under his rule. Moreover, it is emphasized that the National Council of Justice (CNJ) oversees all the activity of the judiciary.
“Jurisdiction for judgment is fixed according to the matter, by the value of the action, by the place where the proceedings took place or in the domicile of the parties and by the speciality of the court” (SOUZA et al, 2019, p.119). Therefore, the assumption of the natural judge architects the delimitations for jurisdiction to be prosecuted and that no person has embarrassment in the legal procedures, because the State is receptive to the reception of hearings through the activation of the requestors and development by the official impulse.
Given the disposition of the Judiciary, the official impulse is associated as a principle of the device in fusion with the inertia of jurisdiction. It is printed in the federative rule that the process only begins with the joining party and then the Judiciary is triggered and the action unfolds (art. 2 CPC/2015)[10]. Thus, for a process to begin, the author needs to file an action in the competent forum, that is, the judiciary will not move a process on its own, since it must first be informed through petition so that the servants of justice begin the investigative developments and listening of the parties. It is also important to mention that in the criminal sphere, according to Alvim (2018, p.86), the process is established by the reception of the complaint in the public ministry (MP) that will mobilize the jurisdiction for the law to frame certain conduct to a criminal type and the subjects are subpoenaed.
It is noted that procedural propaedeutics needs to follow a method, so when processing an action in court, it must be published to attest legitimacy. Thus, the rudiment of the publicity of procedural acts, highlighted in Articles 5, LX and 93, IX of the CF/88[11] establishes that all persons have access to the processes available for consultation on the worldwide network of computers, except those involving secrecy of justice, such as actions in which minors are parties and only lawyers and interested parties can have access, because intimacy must be preserved.
The usefulness of advertising, according to Vicente Greco Filho (2013, p.69), “[…] is a guarantee of other guarantees and even the right enforcement of the law. Nothing better than the supervision of public opinion so that judicial action is done correctly […].” In view of this, the publication of the cases serves for society as a whole to use such an appeal to learn about a given subject, as well as not to occur judicial despotism because the process, as belonging to the branch of public law, is no more fair than actions and jurisprudence being in the public domain.
Just as the process is public in nature and accessible for research, judicial decisions must be substantiated so that the people involved know the reasons that led the magistrate to deliver the sentence, and synchronously, society can know how a result was determined. Therefore, the principle of congruence, based on device 11 of the CPC/2015[12], details that the justification explained by the judge of the case must be phatic, that is, that all the elements brought in the case show sufficient credibility to support the final outcome, otherwise the decision is inopportune and will be null.
Due to the precept of the reasoning of judicial decisions, the contradictory and broad defense are ratified by concrete approval, supported by justifications that effectively address procedural gaps and transmit legal certainty to the spectators (RIBEIRO, 2019, p.48).
As all opinions of the case are opened and supported, the principle of the sealing of a surprise decision predicts that no decision of the judge can be based without the parties having manifested themselves (art. 10 CPC/2015)[13]. It is observed that plaintiff and defendant must always present themselves in the face of the magistrate’s decision, so the judge, has the obligation to listen to the parties before the decision.
Thus, the contradictory is also visible in the sealing of the surprise decision, because it is necessary that there is plurilateral dialogue so that the issues are addressed by expediting cognitive protection prior to the application of a sentence, thus avoiding pending and excessive prolongation of the processes (DONIZETTI, 2017, p.09).
In order for the process not to take too long in the judiciary and that individuals have a penalty for their longings, the principle of the reasonable duration of the proceedings takes place that as soon as justice is applied, effectively fundamental rights are realised, preaching trust in the judiciary and thus decoding access to one’s own jurisdiction (Art. 5, LXXVIII of CF/88 and Art. 4 of the CPC/2015)[14].
In law all actions must take place within a period, so the process needs to develop at a coherent limit without undue dilations (PINHO, 2018, p.113). It is worth emphasizing in this narrative, that justice, when swift, is effective and removes impunity, since the tempestivity of the law only occurs with the use of resources, such as the electronic judicial process that saves time and enhances the reparation of illegality, reconstituting harmony and, thus, making the process fulfill itself in the period that everyone desires, after all, “justice that is late is failure” and waiting is tiring.
Based on the aspiration that the disputes must be resolved in a time cycle favorable to the parties, the principle of cooperation embodied in Article 6 of the CPC/2015[15] alludes to the obligation that all parties have an obligation to cooperate proportionately with what they entail (the parties to the judge and the judge to the parties) with the plan to maintain the preserved balance. Those who do not behave in accordance with the attitudes expected of the average man, are litigators in bad faith (Art. 5 CPC/2015)[16], being egrégio the fulfillment of the principle of good faith in the procedural itinerary.
It is observed that cooperation and good faith allude to isonomy with the tenency of procedural equality (DUARTE; OLIVEIRA JUNIOR, 2012, p.32). With such a principled bias, we seek to move away from the process the selfishness and the arrogance of more favored parties, often economically and intellectually (as is the case of relations between consumer and supplier), in the opposition of other hyposufficient with the goal of establishing the duty of a horizontal plane, without obstructions and decentralization of judicial command in procedural dealings. It is observed with this attitude raised by the CPC/2015 that the judge cannot extinguish the action without first granting the party the chance to amend defects (art. 317 of CPC/2015)[17]. This is based on the cooperation and prestivity of all those involved, the right and proper decision is made in a reasonable time.
The guiding principles of the civil procedure open up a range of possibilities for the actors of the action to have the opportunity to access justice, present evidence, perform the defense, counter each other at the same level of equality and that the period of the filing is coherent. It is with a seat in this aspect of dynamics, that the principle of the double degree of jurisdiction incarceins in the order the possibility of the parties to appeal in a higher court when they are not in agreement with the decision processed in the forum of origin, advancing to a collegiate (Court of Justice) that will re-analyze the process so that the dissatisfied subject has an expanded possibility of obtaining the desired resolution. In this way, legal errors are avoided and people are guaranteed a more simil justice of the ideal (PAGANI DE SOUZA et al, 2019, p.60).
The double degree of jurisdiction is provided for in all diplomas that rule the legal system, because erected by the Escelsa Law, all actions, whether civil, criminal or labor, observe the right of rediagnosis. Access to justice itself intrinsically advocates the double degree of jurisdiction, in the same dimension as due process and broad defense reiterate transparent auditing and free of shady features.
The principles listed in the respective section enable the consummation of justice through the process by establishing the rules for querelantes and querelados to behave with probity and that the judicial authority favors everyone with the right judgment, for the right people and at the right time. Therefore, it is providential to understand that civil procedure is the instrument by which legal relations are undertaken, it is the mechanism directed to the achievement of results under the tutelage of the applicator State of the prerogatives of each citizen.
2. THE INSTRUMENTALIZATION OF CIVIL PROCEEDINGS IN LEGAL-PROCEDURAL RELATIONS
Norms indelibly mark presence in human life. Man as a citizen has the duty to follow and observe legal regulations, because it is through the law that each one places his/her trust and belief to possess his or her rights guaranteed. The conduct of individuals is variable and singularized, there will always be divergences in social relations, since individuals show dubitable longings, in certain situations contrary to the smoothness fixed by the legal institution, thus, the solution of problems demands the enjoyment of jurisdiction and consequently, the process breaks out as a device for the rise of justice.
Civil proceedings are the branch of public law that instills the relationship between individuals. It is employed when the conflict of interest arises in the contractual bonds, in situations that an obligation is ensnated by defects causing harm to one party due to the unmeasured behavior of another (MARIONI; ARENHART; MITIDIERO, 2016, p.425-426). Set up the disagreement, the unfamed subject addresses in court for the registration of the complaint, filed the occurrence, the judge having the first contact, will provide the notification of the author (the party who initiated the process with the report of the losses suffered) and the defendant (the agent who gave cause to the damages of the plaintiff) for the explanation of evidence and defense in order to develop the chain of the steps up to the result appropriate to the question under the filter ing equation of the procedural Jurisdiction.
The process is followed in four stages: it is entabulated by the postulatory phase, moving to the stage of instruction, going to the trial until the recursal phase when it is the case (RODRIGUES; LAMY, 2016, p.188). In the first stage there is the petition where the plaintiff asks the judge for his general purpose linking the effects of the judgment, then the subjects are called to the conciliation hearing, in which the defendant makes his accountability and the plaintiff makes the rejoinder against the defendant. If there is no agreement at the first moment, in the procedural instruction the agents must prove the facts, rounding witnesses and documents under the judge’s analysis. If the evidence is accepted, in the third stage the trial will be given generating the sentence. Through the double degree of jurisdiction, if the judgment is incoherent, the irresigned party appeals, advancing to the fourth stage in the TJ, if it does not admit the cord generated by the second-level judges, again provides the possibility of proceedings for the Superior Court of Justice (STJ), in the event that the matter is of constitutional relevance, the Supreme Court will embrace the cause , no longer having an appeal, the process will return to the foreof origin for the fulfillment of the sentence, producing something judged.
In general terms, it is necessary to discern material law and procedural law. The material law establishes the laws that establish the coexistence of people at the civil plane, discussing natural persons, legal entities, goods, family, business, responsibilities, companies, documents, consumption, prescription and decay. In relation to procedural law, this concerns the application of the law by the figure of the State-Judge who will sanction a resolution in acts in which civil law is not complied with, as well as to be demanded to comply (MARIONI; ARENHART; MITIDIERO, 2016, p.150-151).
The material law has the rules that are based on the entry into the judiciary, while the civil process consolidates the parameters for the matter to be executed concretely observing the fundamental principles. In his doctrine, Monnerat (2018, p.40), points out that first of all, one must know where the rules of the process are born, that is, to know the generating fact to validate the material norm that will further the civil process. Therefore, it is fitting to understand that preliminary comes the matter and its whys for later, with the strength of jurisdiction, to subsume the fact to the norm.
Brazil shares the Civil Law with the law positive as a landmark of the rule of law, needing that the judicial structure recognizes what is written in the legal script, since what is not published and incompatible with CF/88, is not valid and does not have applicability. However, as contemporaneity is fraught with peculiar aspects arising from new trends, when a conflict is fought by actions that are not provided for in the codes, what response should the State provide? All, without distinction, are entitled to a fair process, since the Supreme Law in article 5, XXXV makes it possible to comply with all cases that are entered into the Judiciary, if the law does not fit an event in particular, the Law of Introduction to the Rules of Brazilian Law (LINDB) endorses in Article 4 the judgment by analogy, customs and general principles of law[18] (RIBEIRO , 2019, p.13-14). Although the written laws have disciplinary force, they are not absolute to the point of leaving there unsolved, because the proposal of the principles in the legislative text is the breadth of alternatives that contain pending issues and translate the concern of welcoming the most diverse and eccentric policing.
Item 15 of the CPC/2015[19] adhering that due to the lack of regulation in the unusual divergences, the aforementioned procedural approach will cover the cause solving bottlenecks, which, for example, criminal, labor, electoral, administrative or tax laws are omitted. In this sense, verifying the insipidity of material norms, the CPC/2015 converging with Magna Carta, performs the function of civil jurisdiction as a ensurer of the precepts of legality, impersonality, morality, publicity and efficiency that testify to the public organization of the State to this, justice be believed in the moments that people need to weigh in their balance the pros and cons when the conventions are not sufficient in providing a response.
Since justice is portrayed by isonomy, at the service of all citizens, those whose purchasing power is less than to add to the procedural costs and advice of a lawyer, the State along the lines of Article 5, LXXIV of cf/88, “will provide full and free legal assistance to those who prove insufficient resources”. It is with a smeared in the philosophy of equality and fraternity studded in the positiveization of the fundamental rights of the second and third generation, that the legal system makes available to society the functions essential to justice as the public defender (art. 134 of CF/88)[20] and the Public Prosecutor’s Office (art. 127, caput of CF/88)[21] to perform the representation of the proprecations of the needy and the supervision of the law in the support of the collectivity, as well as in the diffuse prerogatives so that these provideable activities are the propulsion of the right and respect for the dignity of the human person. Just as the population serves justice, justice also takes place with the population through the competent resources predisposed to care for those in need in the procedural way.
The lawyer is indispensable for the exercise of justice (art. 133 CF/88)[22], in the meantime, when entering into court it is necessary that the parties have postulatory capacity, and only the legally qualified lawyer meets the requirements. With such characteristic, the lawyer who will represent the party to the proceedings, through the mandate, will address the respective forum that will receive the claim, being the intermediary between the jurisdiction and the purposes of the plaintiff and defendant. The lawyer, in the lesson of the jurist Alexandre de Moraes (2019, p. 696-697), is also inviolable in his duties, since when having contact with the facts and the procedural conjuncture, is the professional who structures the methodology of theses, employs the legal provisions that support the cause, presents evidence and documents, makes the defense and the challenge, is the spokesperson between the competitors and more , is a political agent of change so that the judiciary is closer to people. In this way, the lawyer is the articulator between society and justice.
For a case to be filed it is necessary to know which jurisdiction is competent for the action. Article 43 of the CPC/2015[23] states that when isbidding the petition, the site filed is competent to qualify the event, which is called a preventjudgment. Thus, if the representative registered the request preambular in the forum of a certain region, it will be marked to judge the cause, regardless of the variations that may erupt after the settlement. The compileof procedure is eclectic, because it accrued the assessment of powers according to the needs of the parties, so the rule of CPC/2015 is not to cause harmfulity in the registration of the forum, streging for convenience between the parties.
The fixation of competence is given by the objective, functional and territorial criteria. According to Lourenço (2017, p. 105), the objective circumspetion emanated from the cause of asking, the request and the parties. The cause of asking refers to the matter that underlies the demand and is distributed in specialized courts as civil when it deals with the areas of private law, labor in matters of labor law or public farm in the actions to which union entities and municipalities are parties. It is also noteworthy that if the forus does not have specialized courts, the judge of the single court (usually in localities that the volume of cases is not as high as those of large centers) will welcome the case. The application limits the judge to what the applicant wishes, being attached to the subject matter of all the lide. And in relation to the parties, they understand the procedural actors who will be the avid, that is, the plaintiff, their defendant and the judge with their respective staff.
The functional criterion, following the reasoning of Haroldo Lourenço (2017, p. 105), “is the one based on the functions performed by the judge in the process, reflecting a public interest, in which the function performed by the court would enable the definition of its competence to prosecute and judge the cause”. It is observed that this criterion concerns the performance of forensic activities such as the trial of the case, the conduct of the rite and the application of the sentences, and consequently, comply with what the spectators expect from a judicial claim. Thus, the judgment that had the contact with the matter is the competent in the regulation of the conflict, including, this criterion allows another forum to be collaborator in situations that one of the parties is distant, as well as assist in the citation, in the collection of evidence and testimonies for the correct performance of legal functions.
The territorial modality is astowed by the place where the defendant’s or the author’s domicile is located, where a well/thing is situated and the place where the fact happened. The author Lourenço (2017, p.105), again nominated, points to the geographical area where the magistrate is working with the aim of bringing him into the process, avoiding setbacks with distances and logistics of addresses and citations so that the reasonable duration of the process is put into practice.
It is elementary to emphasize the rules of internal competence established by the CPC/2015, since they act as a guide for the initial tip of judicial affairs. In causes that include property rights[24], the jurisdiction is that of the county where the property is situated. When the actions are on inheritance[25], the court enabled is that of the place where the author (dewhose) the inheritance was domiciled, not inneed of the domicile of the author, it is the jurisdiction of the situation of the immovable property, there are several properties in different places, any of these places that the property is competent for the action, if there are no real estate, the competent forum is the place of any movable property. In matters involving federal entities[26], the individual has the privilege of the fore in relation to the entities, so, in situations in which the Union, States or Federal District are author, the fore is the domicile of the defendant, already in causes that federal entities are defendants, the judgment is the domicile of the author.
The procedural code also disseminates the special[27] forum for given situations that one of the parties is burdening with the burden of the relationship, so, whenever one party is more vulnerable than the other, has the provision the forum that is closest, moreover, in doubt about the competent forum, the CPC/2015 adopts as a general rule the domicile of the defendant[28] so that it is cited as soon as possible to pay the damages of the plaintiff.
It is therefore imperative to stress that before a case is initiated, one must know the full picture of the situation, who are involved, when, where, how, why and how much is the value of the case with the design of elucubrar doubts and not send the case to the wrong judgment, on the contrary sensu, will have an incompetent judge to judge the action. From this angle, the absolute and relative criteria are reputed to avoid ambiguities as to the competent forum.
The absolute mode is used to protect public interest or particularly relevant private interest. When the matter is of a public nature, it has no preclusion, if it is not complied with, it generates the nullity of the decision and the absolute incompetence of the Judge (ALVIN, 2020, p. 102). The relative criterion, from the perspective of Misael Montenegro Filho (2016, p. 134), is adopted to tutor private occupations, can be extended and if it is not complied with causes the relative incompetence of the judge. It should be noted that by absolute criterion it may be declared by the judge or at the request of the party and in the relative criterion, it may be claimed only by the parties at the first opportunity in which the party manifests itself in the file. Briefly, in actions founded by absolute form, the judgment cannot be modified by the parties because it arises from the law, thus absolute jurisdiction can be claimed at any time and is justified on the basis of the matter, the person and functional competence. By the relative scope, because particular matters fall, if one of the parties does not submit a claim, it generates the extension of jurisdiction, which may be modified by those involved, it is characterised by the value of the case and territoriality, with the effect of the convention between the parties in the election of forum. Laconically, the absolute parameter is prescribed by the fullness of the law and the relative is variable proportionally to the business of the parties.
The causes of competence modification come from connection[29] and continence[30]. The existence of connection is characterized when two or more processes have the same cause of asking and request, therefore, the way to modify the competence is to connect it to the preventive judgment and the related actions are brought together and judged jointly. In continence, two or more actions have in common the parties and causes of asking, the request for another action and a single decision takes place, being competent the preventive judgment.
The CPC/2015 was a watershed for the Brazilian jurisdiction with the rupture of paradigms, transporting the process to the current century. Among the considerable reforms, he was innoded by the feasibility of a lawsuit, given that in the previous diploma of 1973, each individual from an affected group should enter separately to collect his share. The current code allows the meeting of people with a common interest to file a single action on behalf of all, such as in the occurrenceof disasters or consumer relationships that several people are unfortunate by the same guilty agent, which facilitates the flow of processes and agility in a more holistic response.
The regiment of 1973 was dressed by excessive formalism, with a repressive view because the procedure was irretocible. With the promulgation of CF/88, the fundamental guarantees harmonized procedural science with a keen look at the collectivity aiming at fair and appropriate decisions in order to fulfill the ideals of citizenship that began to guide the legal system. Turning attention to the procedural digest of 2015, with its vigoration, formalism has become valuable, that is, the material law contemplates the fact observing the constitutional principles so that the process solves the problem, in this panorama, the noddcode outlines norms not only of reparation, but mainly of prevention of threats to eminent risks of injuries. With the procedural modernization in the civil field, the balance became the keynote for the State to apply the right of each one who is fair, appropriate and appropriate at the right time.
Social relations are instible and mutations happen at a frantic pace, making it difficult to follow all the demands and urges that trigger new facts and call for constant reformulations of the law. While the news is propagated instantly, the Judiciary cannot walk slowly, so the Electronic Judicial Process (PJE) has been implemented in the jurisdiction so that legal procedures flow faster and judicial resources are optimized.
3. THE ELECTRONIC JUDICIAL PROCESS AND THE OPTIMIZATION OF RESOURCES FOR SPEED IN LEGAL TRÂMITES
The transition from civil procedure to the 21st century has forced the entire judicial platform to adapt to the cutting edge of dissemination of information in a timely manner. The PJE came to meet the procedural law so that the issues are monitored and resolved more quickly, thus providing authenticity and legal certainty.
Law No. 11,419, of December 19, 2006 inaugurated in the national law the computerization of the judicial process, since then, the intention of the Judicial Power lies in the provision of transparency in all procedural practices so that the parties are able to witness the entire progress of the event without the displacement to the forum to give entry to documents or request the analysis of the file , because remote access to judicial devices on court websites is plausible (PRETI, 2017, p.313). Thus, procrastination and waste with papers are avoided, since data storage is a resource that ensures greater practicality and convenience, as well as attenuates the upheavement of the judiciary.
This Law that instituted the PJE is the result of Constitutional Amendment No. 45 of 2004[31] that dealt with the reforms of the Judiciary, whose focus was to raise in the legal system undertakings that repelled its slowness and image of impunity, therefore, the reasonable duration of the process was disciplined (Art. 5, LXXVIII of CF/88) as an inducement of the entire procedural circuit (PUFAL, 2015, p.234). In this tuning path, the attributes derived from the worldwide computer network were implanted in all establishments linked to the judiciary, including lawyers who had to insert electronic instrumentalization in their activities through digital certificates to perform communication in judicial programs, and it is impossible to observe the veracity related to the data and characteristics of the agents involved (arts. 1st, 2nd and 3rd of Law No. 11,419/2006)[32].
The theme proposed in this study included in tracing the notoriety of the axiomas that ratify the procedural apanágio, thus, the principle of procedural economy supported by Article 139, II, of the CPC/2015[33] consolidates the maximization of the judicial exercise through the investment of devices that weave significant results in the entry and outcome of the lides with the parsimony of efforts. It is from this point of view that the author Câmara (2018, p.13) highlights:
[…] One can understand the procedural economy as the requirement that the process produce the maximum result with minimal effort. This is the principle that legitimizes procedural institutes such as the optional litisconsortium, the objective cumulation of demands, the denunciation of the case, etc. The less costly (in time and energy) the means used to produce the result (and provided that the constitutionally legitimate result is achieved), the more efficient the process will have been.
Thus, the greater the economy in the act of machining processes, the better the performance of the judiciary, because it is imperative to cost-benefit (PINHO, 2018, p.111). With this, the positive efficiency, strife for the most assertive result in alliance with the computer tools, the PJE is established as a stimulator of the clearance of procedural cells and more satisfactorily will result in the resourcefulness of legal challenges.
In contemporary times, we experience the era of artificial intelligence signaled by applications and prototypes that are pressing to subsidize responses to people’s demands. In the jurisdiction it is also essential to use technologies for procedural law to be agile (ATHENIENSE, 2009, p.10). From this perspective, being the Judiciary compenetrated with the trends and advances that the globalization industry provides, the better the management of conflicts, because with the convergence of new standards, justice is rapidly materialized.
In this current of changes, it can be seen that the tools used previously are no longer relevant to current activities because the vehemence in being digital has become constant and what was employed yesterday is no longer profitable.
It is necessary to overcome many obstacles for the computerization of the judiciary to be applied with the prestability that is advocated by technological waves. Garcia e Silva (2013, p.4) in their study report that the obstacles are due to “lack of financial resources to acquire more modern technologies, lack of compatibility between systems implemented in the courts and cultural resistance of servers”. It is understood that the courts need monetary imports to pay for software of high performance standard, since in Brazil when it comes to support and structure, the public sector is deficient; when it comes to compatibility, it is still witnessed in the courts systems discrepant with the system of the Supreme Court because of the meagre reengineering of standardization in all judicial platforms, since each court works in a different way from the other and it is necessary that a system be desemboque within the large system; and alluding to the human capital that works in judgments, the vast majority of the staff remains attached to the archaic aparaphernalia of printing on craft sheets and burly in empowering to operate the PJE and to go in the nuperrimo direction that procedural law is marching.
The Federal Regional Court of the 4th Region (TRF-4th), in reference to the research of Sérgio Renato Tejada Garcia (2016, p.62-64), emerged as one of the exordiably Brazilian courts to adhere to sustainability as a revolutionary means of judicial performance, profiling with technology to keep up with all the volubility of conflicts. Thus, based on the ideal of potentialization of possibilities, the caveat that includes in the legal system is to outline a strategic planning prone to identify all weaknesses and with the improvement of tactics that have worked, solve the obstacles by prostrating themselves receptively to opportunities in order to eliminate all risks that compromise state action between the parties and ensure effectiveness in the calculation of results.
The Electronic Process (EPROC) emerged as a magnificent ally of justice, that is, with its devices there are numerous operations that can be performed in a single and short time, something that before the regulation of Law No. 11,419/2006 was practically impossible to perform. Author Renato Tejada Garcia (2016, p.74) teaches:
Eproc is much more than a software for processing lawsuits. In fact, it is a large system composed of technological tools for the storage of judicial records in a totally digital environment, has workflows (framework), process distribution module, module of citations and subpoenas, module of hearings, virtual environments for internal and external users, module of generation of documents, module of production of warrants for bailiffs and dispatch of letters etc.
Due to the new directions that society is taking, the volume of lawsuits is increasing in all the country’s forays, although the judiciary has taken a major step towards technological canons, it still has many impasses to be overcome and the point that most challenges legal science in the current periods of transitionis to bring together the human-intellectual work of law operators with the handling of programmed intelligence so that the guiding principles of the process are and thus, the speed can come out of the projects and embody in the day-to-day of the legal orb.
It is warned, therefore, that the resistance to adopt new justice administration programs is linked to the fear, still prevalent, of the legal class and forensic functionalism in losing their jobs, but it is crucial to clarify that justice exists to serve men and not machines, these are only a tool of support, so it is inessuresome to leave aside the prejudice and fear of the new and to show to the population that the Judiciary works and is committed to everyone.
CONCLUSION
It is not by chance that the law aims at balance in relationships, because every action committed against others needs the determination of a result to focus on the restoration of an injured property. Thus, it is vital that the balance of justice remains aligned, so what is usurped on one part, the other that gave cause must restore the damage of the padecente. So no one gets more than they really deserve, just as no one pays more than they actually should. This is how the process works.
It was found in this article that procedural science is marked by logic. The whole liturgy of the process turns its attention to the observation of the principles governing the functioning of the jurisdiction. With such a prospectus, every action must be concatenated with fundamental rights, since they are at the heart of all rights and should be applied to the specific case with the protection of social sovereignty.
Practicality and resource savings define the PJE. In a dynamic society, it is crucial that data computerization is used to guarantee the right, because one experiences a path without return and the more connected the legal science is with the population, the greater the success in resolving conflicts and ensuring peace.
The principles brought in the codes are formidable. But how long will the fundamental premises be plastered in the textual frameworks? What everyone wants and are already tired of waiting for is that these magnificent premises take on their prominent position so that citizenship is performed. The caveat that is made is for the law to be applied effectively, without the game of push-pushes and the long-term solution of demands, because in a society where the cry for help that echoes is for justice to be done, if the judicial jurisdiction is stagnant with eyes literally blindfolded to the appeals of the community there is a risk that legal science is a mere reproducer of demagoguery , “of whom can cry the most” and become obsolete.
Therefore, innovations need to be embraced by legislation to avoid setbacks. And for the right to be effective, one must insert in the formation of jurists the practical experience of actions, what really happens in the world outside, leaving aside the utopia preached for centuries and then the right to be introduced into the new era of change. It is necessary to remove the principles of the codes and experience them in everyday life as a purpose of evolution.
The law accompanies man from its beginnings and will always accompany him throughout the history of mankind, for he is his shield in all actions and stronghold of the perpetuation of all his knowledge. That said, it is categorical to point out that the judiciary is not an arena of duels, nor a business counter! It is the support of society in times of need, it is the power of a Constitutional State to promote justice so that each one can rise morally and mark his post of sovereignty and dignity in human existence. Finally, the law and information technology must go hand in hand, or rather connected, so that access to the judiciary becomes increasingly promising.
REFERENCES
ALVIM, J. E. Carreira. Teoria geral do processo. 21. ed. rev. e atual. Rio de Janeiro: Forense, 2018.
ALVIM, J. E. Carreira. Teoria geral do processo. 23. ed. Rio de Janeiro: Forense, 2020.
ATHENIENSE, Alexandre. A justiça brasileira e o processo eletrônico. Revista Brasileira de Direito Processual – RBDPro, Belo Horizonte, ano 17, n. 65, jan./mar.2009. Disponível em: <http://www.bidforum.com.br/PDI0006.aspx?pdiCntd=57053>. Acesso em: 20 jan. 2020.
BONICIO, Marcelo José Magalhães. Princípios do processo no novo Código de Processo Civil. São Paulo: Saraiva, 2016.
BRASIL. Lei de Introdução às Normas do Direito Brasileiro. Decreto – Lei nº 4.657, de 4 de setembro de 1942. Brasília, DF: Presidência da República, 2020. Disponível em: <http://www.planalto.gov.br/ccivil_03/decreto-lei/del4657compilado.htm>. Acesso em: 12 jan. 2020.
BRASIL. Constituição (1988). Constituição da República Federativa do Brasil. Brasília, DF: Presidência da República, 2019. Disponível em: <http://www.planalto.gov.br/ccivil_03/constituicao/constituicao.htm>. Acesso em: 10 dez. 2019.
BRASIL. Emenda Constitucional nº 45, de 30 de dezembro de 2004. Brasília, DF: Presidência da República, 2020. Disponível em: <http://www.planalto.gov.br/ccivil_03/constituicao/emendas/emc/emc45.htm>. Acesso em: 20 jan. 2020.
BRASIL. Lei nº 11.419, de 19 de dezembro de 2006. Brasília, DF: Presidência da República, 2020. Disponível em: <http://www.planalto.gov.br/ccivil_03/_ato2004-2006/2006/lei/l11419.htm>. Acesso em: 20 jan. 2020.
BRASIL. Código de Processo Civil (2015). Lei nº 13.105, de 16 de março de 2015. Brasília, DF: Presidência da República, 2019. Disponível em: <http://www.planalto.gov.br/ccivil_03/_ato2015-2018/2015/lei/l13105.htm>. Acesso em: 10 dez. 2019.
CÂMARA, Alexandre Freitas. O novo processo civil brasileiro. 4. ed. rev. e atual. São Paulo: Atlas, 2018.
CUNHA, Leonardo Carneiro da. Direito intertemporal e o novo Código de Processo Civil. Rio de Janeiro: Forense, 2016.
DELLORE, Luiz et al. Teoria geral do processo contemporâneo. 3. ed. São Paulo: Atlas, 2018.
DIDIER Jr, Fredie. Curso de direito processual civil: introdução ao direito processual civil, parte geral e processo de conhecimento. 1. ed. Salvador: Ed. Jus Podivm, 2017.
DONIZETTI, Elpídio. Novo Código de Processo Civil Comentado. 2. ed. rev., atual. e ampl. São Paulo: Atlas, 2017.
DUARTE, Bento Herculano; OLIVEIRA JUNIOR, Zulmar Duarte de. Princípios do processo civil: noções fundamentais (com remissão ao novo CPC): jurisprudência do STF e do STJ. Rio de Janeiro: Forense; São Paulo: Método, 2012.
GARCIA, Bruna Pinotti; SILVA, Nelson Finotti. Informatização do Poder Judiciário e acesso à justiça: perspectivas atuais. Revista Brasileira de Direito Processual – RBDPro, Belo Horizonte, ano 21, n. 82, abr./jun. 2013. Disponível em: <http://www.bidforum.com.br/PDI0006.aspx?pdiCntd=95611>. Acesso em: 20 jan. 2020.
GARCIA, Sérgio Renato Tejada. Eproc e sustentabilidade. Interesse Público – IP, Belo Horizonte, ano 18, n. 96, mar./abr. 2016. Disponível em: <http://www.bidforum.com.br/PDI0006.aspx?pdiCntd=240227>. Acesso em: 20 jan. 2020.
GRECO FILHO, Vicente. Direito processual civil brasileiro, volume 1: teoria geral do processo a auxiliares da justiça. 23. ed. São Paulo: Saraiva, 2013.
LOURENÇO, Haroldo. Processo civil: sistematizado. 3. ed. rev. e atual. Rio de Janeiro: Forense; São Paulo: Método, 2017.
MANCUSO, Rodolfo de Camargo. Teoria geral do processo. 1. ed. Rio de Janeiro: Forense, 2018.
MARIONI, Luiz Guilherme; ARENHART, Sergio Cruz; MITIDIERO, Daniel. Novo curso de processo civil: teoria do processo civil, volume 1. 2. ed. rev., atual. e ampl. São Paulo: Editora Revista dos Tribunais, 2016.
MONNERAT, Fábio Victor da Fonte. Introdução ao estudo do direito processual civil. 3. ed. São Paulo: Saraiva Educação, 2018.
MONTENEGRO FILHO, Misael. Manual da advocacia cível: como advogar com o Novo Código de Processo Civil. 3. ed. rev. a atual. São Paulo: Atlas, 2016.
MONTENEGRO FILHO, Misael. Direito processual civil. 13. ed. São Paulo: Atlas, 2018.
MORAES, Alexandre de. Direito Constitucional. 35. ed. São Paulo: Atlas, 2019.
PINHO, Humberto Dalla Bernardina de. Direito processual civil contemporâneo: teoria geral do processo. 8. ed. São Paulo: Saraiva Educação, 2018.
PUFAL, Tatiana Alvim. Súmulas vinculantes e súmulas impeditivas de recursos: mecanismos para concretizar o princípio da razoável duração do processo. Revista Brasileira de Direito Processual – RBDPro, Belo Horizonte, ano 23, n. 89, jan./mar. 2015. Disponível em: <http://www.bidforum.com.br/PDI0006.aspx?pdiCntd=232318>. Acesso em: 23 jun. 2020.
PRETI, Ricardo Delgado. O impacto do novo Código de Processo Civil nos processos eletrônicos: mutação infraconstitucional qualitativa da Lei nº 11.419/2006. Revista Brasileira de Direito Processual – RBDPro, Belo Horizonte, ano 25, n. 99, jul./set. 2017. Disponível em: <http://www.bidforum.com.br/PDI0006.aspx?pdiCntd=248302>. Acesso em: 23 jun. 2020.
RIBEIRO, Marcelo. Processo civil. 2. ed. Rio de Janeiro: Forense; São Paulo: Método, 2019.
RODRIGUES, Horácio Wanderlei; LAMY, Eduardo de Avelar. Teoria geral do processo. 4. ed. rev., atual. e ampl. São Paulo: Atlas, 2016.
SOUZA, André Pagani de et al. Teoria geral do processo contemporâneo. 4. ed. São Paulo: Atlas, 2019.
TESCHEINER, José Maria Rosa; THAMAY, Rennan Faria Krüger. Teoria geral do processo. 4. ed. São Paulo: Saraiva Educação, 2019.
APPENDIX – FOOTNOTE REFERENCES
[3] Art. 5º All are equal before the law, without distinction of any nature, ensuring to Brazilians and foreigners residing in the country the inviolability of the right to life, liberty, equality, security and property, in the following terms: […] XXXV – the law will not exclude from the assessment of the Judiciary injury or threat to law […] (BRASIL, 1988).
[4] Art. 3. Threat or right-to-injury from the judicial assessment shall not be excluded from the judicial assessment. § 1 – Arbitration is permitted in the form of law. § 2 – The State shall promote, whenever possible, the consensual settlement of conflicts. § 3 – Conciliation, mediation and other methods of consensual resolution of conflicts should be encouraged by judges, lawyers, public defenders and members of the Public Prosecutor’s Office, including in the course of the judicial process (BRASIL, 2015).
[5] Art. 5th […] LIV – no one will be deprived of liberty or their property without due process […] (BRASIL, 1988).
[6] Art. 5º All are equal before the law, without distinction of any nature, guaranteeing brazilians and foreigners residing in the country the inviolability of the right to life, liberty, equality, security and property (BRASIL, 1988).
[7] Art. 7. The parties are guaranteed parity of treatment in relation to the exercise of procedural rights and faculties, the means of defense, the burdens, the duties and the application of procedural sanctions, and the judge is responsible for the contradictory effective (BRASIL, 2015).
[8] Art. 5º […] LVI – the evidence obtained by unlawful means is inadmissible in the case […] (BRASIL, 1988).
[9] Art. 5th […] XXXVII – there will be no court or court of exception; […] LIII – no one will be prosecuted or sentenced but by the competent authority […] (BRASIL, 1988).
[10] Art. 2º The process begins at the initiative of the party and develops on official impulse, except for the exceptions provided for by law (BRASIL, 2015).
[11] Art. 5th […] LX – the law may only restrict the publicity of procedural acts when the defense of intimacy or social interest requires it […] (BRASIL, 1988);
Art. 93. Supplementary law, of initiative of the Supreme Court, will have on the Statute of the Judiciary, subject to the following principles: […] IX – all judgments of the organs of the Judiciary will be public, and reasoned all decisions, under penalty of nullity, and the law may limit the presence, in certain acts, to the parties themselves and their lawyers, or only to these, in cases in which the preservation of the right to privacy of the person concerned in secrecy does not harm the public interest to information (Writing constitutional amendment no. 45 of 2004 […] (BRASIL, 1988).
[12] Art. 11. All judgments of the organs of the Judiciary will be public, and all decisions are based, under penalty of nullity (BRASIL, 2015).
[13] Art. 10. The judge may not decide, to any degree of jurisdiction, on the basis of which the parties have not been given the opportunity to speak, even if it is a matter on which it must decide by office (BRASIL, 2015).
[14] Art. 5th[…] LXXVIII – all, in the judicial and administrative sphere, are assured the reasonable duration of the process and the means that ensure the speed of its processing (Included by Constitutional Amendment No. 45, 2004) […] (BRASIL, 1988);
Art. 4º The parties have the right to obtain within a reasonable period of time the full solution of the merits, including the satisfactory activity (BRASIL, 2015).
[15] Art. 6º All the subjects of the process must cooperate with each other in order to obtain, in a reasonable time, a decision of just and effective merit (BRASIL, 2015).
[16] Art. 5º He who participates in the process in any way must behave according to good faith (BRASIL, 2015).
[17] Art. 317. Before making a decision without a resolution of merit, the judge must grant the party the opportunity to, if possible, correct the defect (BRASIL, 2015).
[18] Art. 4o When the law is silent, the judge will decide the case according to the analogy, customs and general principles of law (BRASIL, 1942).
[19] Art. 15. In the absence of rules governing electoral, labor or administrative processes, the provisions of this Code will be applied to them in substance (BRASIL, 2015).
[20] Art. 134. The Public Defender’s Office is a permanent institution, essential to the judicial function of the State, entrusting it, as an expression and instrument of the democratic regime, fundamentally, the legal orientation, the promotion of human rights and the defense, to all degrees, judicial and extrajudicial, of individual and collective rights, in an integral and free way, to the needy, in the form of the LXXIV item of Art. 5 of this Federal Constitution. (Drafting given by Constitutional Amendment No. 80, 2014) § 1st Complementary Law will organize the Public Defender’s Office of the Union and the Federal District and territories and prescribe general rules for its organization in the States, in career positions, provided, in the initial class, through a public tender of evidence and titles, assured to its members the guarantee of unmovedability and the exercise of advocacy outside the institutional attributions. (Renumbered by Constitutional Amendment No. 45 of 2004); § 2 – The State Public Defender’s Office is guaranteed functional and administrative autonomy and the initiative of its budget proposal within the limits established in the law of budgetary guidelines and subordination to the provisions of art. 99, § 2 (Included by Constitutional Amendment No. 45, 2004); § 3 – The provisions of § 2 shall apply to the Public Defender’s Office of the Federal Government and the Federal District. (Included by Constitutional Amendment No. 74 of 2013); § 4 – The public defender’s office is institutional principles, unity, indivisibility and functional independence, and the provisions of Art. 93 and section II of art. 96 of this Federal Constitution also apply. (Included by Constitutional Amendment No. 80, 2014) (BRASIL, 1988).
[21] Art. 127. The Public Prosecutor’s Office is a permanent institution, essential to the judicial function of the State, entrusting it with the defense of the legal order, the democratic regime and the unavailable social and individual interests (BRASIL, 1988).
[22] Art. 133. The lawyer is indispensable to the administration of justice, being inviolable for his acts and manifestations in the exercise of the profession, within the limits of the law (BRASIL, 1988).
[23] Art. 43. Jurisdiction is determined at the time of registration or distribution of the petition, and the changes in the state of fact or law that occurred subsequently, unless they suppress the judiciary or change absolute jurisdiction (BRASIL, 2015) are irrelevant.
[24] Art. 47. For actions based on real property law is competent the forum of situation of the thing. § 1 – The plaintiff may opt for the defendant’s foreforehouse or the foreof election if the dispute does not fall on the right of property, neighborhood, servitude, division and demarcation of land and nunciation of new work. § 2 – The real estate possession action will be proposed in the forum of the situation of the thing, whose judgment has absolute jurisdiction (BRASIL, 2015)
[25] Art. 48. The forum of domicile of the author of the inheritance, in Brazil, is the competent for the inventory, sharing, collection, compliance with provisions of last will, the challenge or annulment of extrajudicial sharing and for all actions in which the estate is defendant, even if the death occurred abroad.
Single paragraph. If the author of the inheritance did not have a certain domicile, he is competent: I – the forum of the situation of the immovable property; II – real estate in different for a, any of these; III – there is no real estate, the venue of any of the assets of the estate (BRASIL, 2015).
[26] Art. 51. The defendant’s forum of domicile for the cases in which the Union is the plaintiff is competent.
Single paragraph. If the Union is the defendant, the action may be proposed in the forum of domicile of the author, in the occurrence of the act or fact that originated the demand, in the situation of the thing or in the Federal District;
Art. 52. The defendant’s jurisdiction for domicile is competent for the cases in which the State or the Federal District is the plaintiff.
Single paragraph. If the State or the Federal District is the defendant, the action may be proposed in the author’s forum of domicile, in the occurrence of the act or fact that originated the demand, in the situation of the thing or in the capital of the respective federated one (BRASIL, 2015).
[27] Art. 53. The forum is competent: I – for the action of divorce, separation, annulment of marriage and recognition or dissolution of stable union: a) domicile of the guardian of an incapacitated child; b) the last domicile of the couple, if there is no incapacitated child; c) the defendant’s domicile, if neither party resides in the former domicile of the couple;
- d) home of the victim of domestic and family violence, pursuant to Law No. 11,340 of August 7, 2006 (Maria da Penha Law); (Included in Law No. 13,894, 2019) II – domicile or residence of the feeding, for the action in which food is asked; III – of the place: a) where the seat is, for the action in which it is a legal entity; b) where the agency or branch is found, as to the obligations that the legal entity has contracted; c) where it carries out its activities, for the action in which it is a company or association without legal personality; (d) where the obligation must be met, for the action in which compliance is required; e) residence of the elderly, for the cause that sees about the right provided for in their statute; f) the office of the notarial service or registration, for the action of repair of damage by act committed on the basis of the office; IV – from the place of the act or fact to the action: a) repair of damage; b) in which the other company’s manager or business manager is a defendant; V – domicile of the author or the place of fact, for the action of repair of damage suffered due to a crime or accident of vehicles, including aircraft (BRASIL, 2015).
[28] Art. 46. The action based on personal or real right on movable property will be proposed, as a rule, in the fore of domicile of the defendant. § 1 – Having more than one domicile, the defendant will be defendant in the forum of any of them.
§ 2 – If the defendant’s domicile is uncertain or unknown, he may be defendant where he is found or in the fore of domicile of the plaintiff. § 3 – When the defendant does not have domicile or residence in Brazil, the action will be proposed in the foreof the author’s domicile, and, if the defendant also resides outside Brazil, the action will be proposed in any fora. § 4 – If there are 2 (two) or more defendants with different households, will be demanded in the fore of any of them, at the choice of the author. § 5 – Tax enforcement will be proposed at the defendant’s domicile, in his residence or in the place where he is found (BRASIL, 2015).
[29] Art. 55. 2 (two) or more actions are reputed when they are common for the request or cause of asking. § 1 – The related action proceedings shall be gathered for a joint decision, unless one of them has already been sentenced. § 2 – The provisions of the caput shall apply: I – to the execution of an out-of-court title and to the action of knowledge relating to the same legal act; II – executions founded on the same enforcement order. § 3 – The processes that may generate risk of proseeding conflicting or contradictory decisions if decided separately, even without connection between them, will be gathered for joint judgment (BRASIL, 2015).
[30] Art. 56. There is a continence between two (2) or more actions when there is identity as to the parties and the cause of asking, but the request for one, because it is broader, covers that of the others (BRASIL, 2015).
[31] Constitutional Amendment No. 45 of December 30, 2004.
[32] Art. 1º The use of electronic means in the processing of judicial proceedings, communication of acts and transmission of procedural documents will be admitted under this Law. § 1 – The provisions of this Law shall apply, indistinctly, to civil, criminal and labor proceedings, as well as to special courts, in any degree of jurisdiction. § 2 – For the provisions of this Law, it is considered: I – electronic means any form of storage or traffic of documents and digital files; II – electronic transmission all forms of distance communication with the use of communication networks, preferably the worldwide network of computers; III – electronic signature the following forms of unambiguous identification of the signatory: a) digital signature based on digital certificate issued by accredited Certifying Authority, in the form of specific law; b) by registering users in the judiciary, as disciplined by the respective bodies;
Art. 2º The submission of petitions, appeals and the practice of procedural acts in general by electronic means will be admitted by the use of electronic signature, in the form of art. 1 of this Law, being mandatory the prior accreditation in the Judiciary, as disciplined by the respective bodies. § 1 – Accreditation in the Judiciary will be carried out through a procedure in which the appropriate face-to-face identification of the interested party is ensured. § 2 – The accredited will be assigned registration and means of access to the system, in order to preserve the confidentiality, identification and authenticity of its communications. § 3 – The organs of the Judiciary may create a single register for the accreditation provided for in this article;
Art. 3º Procedural acts are considered by electronic means on the day and time of their sending to the system of the Judiciary, which should be provided electronic protocol. Single paragraph. When the electronic petition is sent to meet the procedural deadline, the transmitted by 24 (twenty-four) hours of its last day (BRASIL, 2006) will be considered timely.
[33] Art. 139. The judge will direct the case in accordance with the provisions of this Code, entrusting him to: […] II – ensure the reasonable duration of the proceedings […] (BRASIL, 2015).
[1] Bachelor’s degree in Administration from the University of Passo Fundo (UPF) and Academic of the Law Course at the University of Passo Fundo (UPF).
[2] Guidance counselor.
Submitted: June 2020.
Approved: February 2021.
