REVIEW ARTICLE
BUCCO, Bruna Maiolino [1]
BUCCO, Bruna Maiolino. Procedural Legal Business: The new role of the parties within the procedural relationship and the role of the judge. Multidisciplinary Scientific Journal Núcleo do Conhecimento. Year 06, Ed. 01, Vol. 05, pp. 144-157. January 2021. ISSN: 2448-0959, Access link: https://www.nucleodoconhecimento.com.br/law/legal-business
ABSTRACT
Brazilian procedural law faced several modifications and expansions with the entry into force of the New Code of Civil Procedure in 2016. Some existing institutes were revisited, in order to conform to the fundamental precepts that were expressly provided for in CCP / 15 . Among them is the procedural legal business. CCP / 15 maintained the typical procedural deals, already present in CCP / 73, and widened the spectrum, bringing in art. 190 of the CCP prediction on the possibility of carrying out atypical procedural conventions. For this reason, due to the emergence of this new type of act, our study aimed, through the analysis and interpretation of available bibliographies on the subject, to investigate the participation of the judge in view of the dilation of autonomy and freedom given to the parties in the process. We managed to identify that, in some situations, the magistrate’s manifestation of will is essential for the procedural deal to be valid, without this representing an affront to art. 190 of CCP / 15, nor to the principle of self-regulation of the will of the parties.
Keywords: atypical procedural legal affairs, protagonism of the parties, performance of the judge, validity of the conventions.
1. INTRODUCTORY CONSIDERATIONS
A few years after the entry into force of the Civil Procedure Code of 2015, many debates and reflections still permeate the procedural community regarding the contours given by the new procedural diploma to institutes, many times, already known.
The publicism that has always governed procedural rules proved to be an obstacle to procedural changes proposed by the parties, since these rules have traditionally been understood as coherent.
However, procedural legal deals were already present in CCP / 73, which gained new breadth with the arrival of the new Civil Procedure Code. The former CCP contained the prediction of some hypotheses of typical procedural deals, such as: the choice of jurisdiction, the conventions on the burden of proof and the suspension of the process, however, CCP / 15 innovated by bringing in its art. 190 the possibility of concluding atypical legal businesses (AURELLI, 2017), based on the principle of cooperation and adequacy. Therefore, it enshrined three significant novelties: the principle of procedural adequacy, the general clause of atypical procedural deals and the principle of respect for the self-reinstatement of the parties’ will (POMJÉ, 2017).
With this provision, the possibility of negotiation was opened in all fields of procedural law, such as: evidential production, sentence compliance, procedural deadlines; without the litigants being attached only to the typical procedural conventions, the parties may also negotiate on matters involving procedures, as is the case with the conventions on shorter rites, to simplify the causes (FERNANDES, 2017).
With so many changes arising from the New Code, the question was raised, then, what would be the role of the judge in the face of all this new movement that was shown in CCP / 15, and that brought greater protagonism to the parties with the primary objective of printing effectiveness of the process and, in some cases, speed.
Would the publicism of procedural rules have given way to privatism, so common in civil law?
Among the whole range of procedural legal deals that became possible with the new procedural law, we see the need for the judge to act for the validity of these acts to change, depending on the type of procedural convention that is established, establishing a new relationship with the parties and the process. Would he, in these cases, be part of the process? Would art. 190, caput of CCP / 15 also addressed to the magistrate?
2. OVERVIEW OF PROCEDURAL LEGAL BUSINESSES IN CCP / 15
Depending on Mouzalas; Terceiro Neto and Madruga (2016, p.303) “the notion of procedural legal business derives from the very notion of business associated with that of procedural act”. The legal business, together with the legal act stricto sensu, are species of the genus legal act lato sensu. The difference between the two rests on the fact that in this one, the effects are previously established and unalterable by the will of the parties, while in that one, the right is allowed so that, in certain limits, the parties regulate their interests, according to their convenience.
The institute of procedural business is not a novelty brought by the new procedural law in force, in view of the fact already included in CCP / 73. The novelty lies in the possibility of carrying out these businesses in an atypical manner, a prediction that brought a broader and more effective performance to the parties within the process.
However, before going into the minutiae of the theme, it is important to note that the fundamental precepts also permeate the application of procedural conventions and must be observed, in particular the principle of cooperation, included in art. 6 of CCP / 15, since it guarantees “the parties a greater role in carrying out the process, providing them with opportunities and active participation in the resolution of conflicts and the effectiveness of guardianship.” (AURELLI, 2017, p.48). This effectiveness is also presented as one of the corollaries of the new Code of Civil Procedure, given that all procedural subjects must, through the principle of cooperation, always seek as a final objective fair and effective decisions of merit, rendered in a reasonable time.
The doctrine separates the atypical conventions into two types: those that change the procedure (deadlines, forensics, hearings) and those that change the legal regime of the parties (encumbrances, duties, powers, faculties). The law restricted only the business that deals with procedures to the need to adapt to the specifics of the conflict, and is not necessarily required when dealing with procedural agreements that deal with the parties’ legal regime. However, there are no impediments for both types to be rejected if futility or inadequacy is identified based on disrespect for good faith, social function or any fundamental standard of CCP / 15, as we will see later (BANDEIRA, 2015).
Regarding the classifications, among many that the procedural legal businesses can receive, the classification regarding the typicality is particularly relevant, which is divided into typical and atypical procedural businesses. The typical ones are those that have their constant provision in the law, and any action by the parties regarding its regulation is essential (CUNHA, 2015).
Examples of typical legal transactions in CCP / 15 include: the choice of court (art. 63 of CCP / 15); the extension of jurisdiction (Article 65 of CCP / 15); the timetable for the practice of procedural acts (art. 191 of CCP / 15); the waiver of term (Article 225 of CCP / 15); the suspension of the process (art. 313, II of CCP / 15) and the procedural organization (art. 357, §2 of CCP / 15).
Atypical legal transactions, on the other hand, are expressly provided for in art. 190 of the CCP, which is a general standard for procedural business and provides for
In terms of the process on rights that admit self-composition, it is permissible for the fully capable parties to stipulate changes in the procedure to adjust it to the specifics of the case and agree on their burdens, powers, powers and procedural duties, before or during the process.
In fact, the New Code of Civil Procedure brought a range of rules that address negotiation about the process. According to Didier Jr. (2017, p.169) “art. 190 and art. 200 of the CCP are the nucleus of the microsystem and must be interpreted together, since they reestablish the dogmatic model of negotiation on the process in the Brazilian civil procedural law. ”
Thus, we can infer from the diction of article 190 that the new CCP “provides for the possibility that the parties, as long as they are fully capable and concerned that deal with rights that admit self-composition, stipulate changes in the procedure to adjust it to the specifics of the cause” (NEVES, 2016), creating, in this tone, a general clause of negotiation, which brings autonomy and independence for the parties to agree outside of what is foreseen in typical procedural deals.
Another important classification is linked to the willingness of the parties to carry out the procedural legal business. Part of the doctrine considers the existence of unilateral procedural deals when the request is waived and acknowledged. Art. 190 of the new CCP carries with it the provision of bilateral procedural legal transactions, and the agreement of the parties is essential for its perfectibilization. And, finally, there is the possibility that the procedural deal may be plurilateral, when the agreement takes place not only between the parties, but also with the jurisdictional body involved (judge or court), as we can see with the timing of the procedure, in art . 191 of CCP / 15 or with shared sanitation, provided for in art. 357, §3 of CCP / 15 “(NEVES, 2016, p.303).
Advancing on the subject, the agreement provided for in art. 190 of CCP / 15 has the possibility of being carried out both procedurally and pre-procedurally. If done before the start of the process, it can be done by contractual clause or by a separate instrument, whereas if signed during the process, it can be done extrajudicially and filed in court or in court, in the presence of the magistrate or conciliator / mediator ”(idem, p. 306/307).
In addition, the rule is that, regarding the process of rights that admit self-composition, there is no need for judicial approval of the legal procedural business signed so that it proves to be effective, however, it must, however, submit to the validity control by the judge, refusing application. in cases where there is nullity, or if it is abused in an adhesion contract, or if one of the parties is manifestly vulnerable.
Although the provision of art. 190 of CCP / 15 is restricted to rights that admit self-composition, the doctrine is unanimous in understanding that the legal provision is perfectly applicable to unavailable rights, provided that the party protected by the unavailability is the beneficiary, selling the opposite (MOUZALAS; TERCEIRO NETO; MADRUGA, 2016). This is because one should not confuse unavailable rights with rights that do not admit self-composition, because self-composition does not have the objective of material right, but rather the ways of exercising the right, such as, for example, the modes and compliance with the obligation. .
As a result of this relevant distinction, the possibility of applying procedural conventions to collective proceedings originated, even though they deal with unavailable rights and have the Public Prosecutor’s Office as part of the action (NEVES, 2016). In this sense, it is the understanding of the Civil Proceduralist Forum, in statements 253 and 255 (Statement 253 of the FPPC: “The Public Prosecution Service can enter into a procedural deal when it acts as a party.”; collective. ”).
3. LIMITS TO PROCEDURAL LEGAL BUSINESS
By carefully reading the new Civil Procedure Code, it is easy to identify that there was an increase in the freedom of the parties to agree on the procedure or the status of procedural positions, which makes the process more democratic and effective, achieving the objectives sought by the litigants to a lesser extent. time. However, the benefits achieved by increasing the possibilities of using procedural conventions cannot be sufficient justification for them to be traded indiscriminately, without observing limits.
In this light, the doctrine has understood that the fundamental norms are primary limitations to the power of the parties to establish procedural legal businesses. This is because, these conventions cannot violate the minimum guarantees of the process, that is, they cannot face due legal process.
The principle of good faith permeates the entire legal system, including procedural rules. Provided expressly in art. 5 of CCP / 15, the parties are not allowed to depart from their duties in good faith and procedural loyalty, and must act with probity and rectitude in all their manifestations, which allows the judge, at this moment, to act in order to restrain that negotiated procedural acts stripped of procedural good faith are practiced (idem, p. 311).
Furthermore, another limitation provided for by the doctrine is found in the principle of publicity, since the parties would not be allowed to remove publicity from the acts performed, establishing new hypotheses of secrecy of justice or else to rule out the hypotheses provided for the specific case. Thus, it is considered that art. 11 of CCP / 15 is absolute, and cannot be inapplicated by convention of the parties.
Likewise, the parties are not allowed to rule out the application of relevant rules. As an assumption of these, it is understood that they are imposed by law on procedural subjects, thus, the parties cannot make an agreement of will regarding the application or not of such rules.
As examples of the impossibility of changing relevant rules due to an agreement of will between the parties, Daniel A. A. Neves (2016, p.313) clarifies
On the grounds that the parties cannot depart from relevant rules, it is not allowed to deal with the admission of illicit evidence, to exclude the participation of the Public Prosecutor when the law requires their presence, to establish priority of judgment when provided for by law, to create new resources or expand its hypothesis of suitability, to modify the rule of absolute jurisdiction, to create hypothesis of rescissory action and other measures tending to dismiss the res judicata, to dispense with the presence of necessary litisconsorts etc.
However, it is not easy to define the limitations to which the will agreement in procedural conventions is subject, requiring constant work from jurisprudence and doctrine to define such limits, based on the fundamental rules of CCP / 15 and the constitutional reading of the process.
For this reason, the Statements of the Permanent Forum of Civil Processualists (FPPC), as well as the Statements of the School for the Training of Magistrates (ENFAM), became so important, that they took care to indicate, on a case by case basis, hypotheses in which they may or may not be. used the procedural legal business.
For the FPPC, the following are admissible: a non-enforceability pact; agreement to extend the terms of the parties of any nature; procedural apportionment agreement; dismissal of technical assistant consensual; agreement to withdraw the suspensive effect of the appeal; agreement not to promote provisional execution; pact of mediation or extrajudicial conciliation or mediation provided for in art. 334; contractual exclusion pact from the conciliation or mediation hearing provided for in at. 334; pact for the prior availability of documentation (pact for disclosure), including with the stipulation of negotiation sanction, without prejudice to coercive, mandatory, subrogatory or inductive measures; provision of alternative means of communication between the parties; agreement to perform oral support; agreement to extend the oral support time; early judgment of conventional merit; proof convention; reduction of procedural deadlines, to dispense security in the provisional fulfillment of sentence (Statements 19, 21 and 262).
For the FPPC, legal transactions for modifying absolute jurisdiction are inadmissible; agreement to abolish the first instance, excluding the Public Prosecutor’s Office, prohibiting the participation of amicus curiae (Statements 20, 253 and 392).
For ENFAM, legal transactions that affect the judge’s powers are unacceptable, such as those that: limit their powers of instruction or sanction to unprecedented litigation; subtract from the judge-State the control of the parties’ legitimacy or the entry of amicus curiae; introduce new hypotheses of irrecoverability, termination or oral support not provided for by law; provide for the judgment of the conflict based on a law different from the national law in force; and establish priority of judgment not provided for by law (Statement 36). And procedural conventions that violate the constitutional guarantees of the process are null and void, such as those that: authorize the use of illicit evidence; limit the publicity of the process beyond the cases expressly provided for by law; modify the regime of absolute competence; and dispense with the duty of motivation (Statement 37) (NEVES, 2016, p. 316/317).
4. THE ROLE OF THE JUDGE IN FRONT OF THE AGREEMENT DEFINED IN THE PROCESSUAL LEGAL BUSINESS
Nowadays, the role of the judging body regarding the application of art. 190 of CCP / 15 and whether this would represent a limitation on the powers of the judge, here understood both the first degree magistrates and the courts.
Resuming the understanding of procedural rules in the light of CCP / 73, these were considered to be predominantly cogent, that is, they were unalterable, either by litigants or by the magistrate, and it is not possible to agree on procedures or on the legal regime of the parties . However, civil procedural law is also governed by the field of freedom, even though it is part of public law, and which, under the influence of the autonomy that plaintiffs have to transact in the field of material law, has increased their powers to enter into lawsuits. procedural conventions (POMJÉ, 2017), culminating in the express provision of CCP / 15 on the possibility of carrying out atypical procedural deals.
In the words of Pedro Henrique Nogueira: “The procedural business already existed under the aegis of the previous legislation, but there was never such a space for the participation of litigants in the development of the jurisdictional activity, to the point of enabling the parties to negotiate the procedure itself. ” (NOGUEIRA, 2016, p. 255).
As is well known, the rule established in the New CCP does not require judicial approval for the validity of procedural conventions, but it may be required, however, for procedural deals aimed at changes in the procedure, as seen in cases of withdrawal (art. 200, § ú of the CCP) and consensual organization of the process (art. 357, §2 of the CCP).
This time, the procedural legal business will remain characterized by the willingness of the parties to practice the act, added to their desire to produce a certain legal effect. A legal rule is chosen for a specific situation (DIDIER JR., 2017, p. 169). These are procedural deals that do not interfere with the legal status authorized by the judge, since the judge’s performance is essential for these acts to fulfill their validity requirements.
Exceptionally, as already exposed, some acts elected by the parties will need judicial approval to have their effects in the process, but all procedural legal transactions will pass through the judge’s scrutiny regarding the verification of their validity within the legal system, being essential the presence of three requirements: the celebrants must be capable; the object must be lawful and must comply with a form prescribed or not prohibited by law (arts. 104, 166 and 167, all of CC).
In addition, it is worth mentioning the provision contained in art. 190, §ú of the CCP, which allows the judge, on request or ex officio, to disregard the convention that is invalid or abusive, thereby exercising validity control over procedural conventions. However, you must observe the general rule on procedural invalidity, and only declare it null if the damage is proven (ALMEIDA, 2014).
It is also necessary that the judge observes two negative requirements to validate an act: abuse and the legal situation held by the magistrate. According to Avelino (2016, p. 331) “(…) if the deal on the procedure is able to influence, in an illegitimate way, the judge’s performance in the process, the control over its validity must have resulted in a negative result.”
The validity control provided for in art. 190, §ú of the CCP is bound and not discretionary, only authorizing the judge to carry out the control to prevent the parties from extrapolating the power conferred to them by the device, ensuring that they remain within the limits authorized by the self-regulation of the will. The provision is also intended to prohibit the judge from opposing what was transacted, and he must act proactively in order to implement the agreed procedural business.
In another round, in some situations, the law imposes the need for the magistrate to express his will so that the procedural convention becomes perfect. Here he is also shown as a subject of the act. Therefore, in order to enter the validity plan, it is essential that the judge expresses himself positively for the formation of the procedural business, as it is a plurilateral procedural convention.
It is important to note the distinction between the securitization of rights in relation to the process and in relation to the material right that is the subject of the dispute. Let’s see:
that, when the legislator allows legal deals to be made regarding “rights that admit self-composition”, it is understood that the hypothesis of art. 190 (atypical procedural affairs) does not apply to the judge, as he does not personally hold the right (in the sense of a subjective substantive legal situation) put to debate as the object of the process, insofar as it acts as a body of jurisdiction. It is necessary to differentiate: the parties hold legal situations related to both the process (understood as a contradictory procedure – encumbrances, powers, duties, faculties, etc.) and the material law that is the object of the procedural legal relationship; the judge secures legal situations related to the process (inserted in the contradictory procedure), but not in relation to the material law that is being discussed (idem, p. 333).
A great discussion about the participation of the judge in the formation of the procedural business, held within the doctrinal scope, is linked to the fact that art. 190, caput of CCP / 15 dealing only with procedural conventions entered into by the parties. Fredie Didier Jr. (2017, p.169) understands that in addition to the fact that there are typical procedural legal deals involving the judge, there is no prejudice to the agreement of the atypical act and the magistrate’s co-participation, pointing out that “(…) can negotiate without interference of the judge is more than being able to negotiate with the participation of the judge. ”
Others, such as Avelino (2016, p.334), consider that the provisions of art. 190 of the CCP refers expressly to the parties and that the legitimacy for the judge to act as co-declarer in a procedural legal business would not be supported by the law, but on the principle of adequacy, since “the principle of adequacy serves to adapt the procedure when necessary for the full effectiveness of state protection of material law. ”
There are still those who, in the wake of Antônio do Passo Cabral (2016), do not consider the magistrate as part of the procedural business, as he would not have autonomy or freedom to transact, since he does not have the capacity for negotiation. For the plaintiff, the judge cannot be an integral part of the procedural business, only the parties, and it is only up to him to approve or admit it through the control of its validity.
Regarding the typical plurilateral procedural conventions, we have as main examples the procedural calendar (art. 191 of the CCP) and the shared organization of the process (art. 357, §3 of the CCP).
In the calendar, the parties, together with the judge, pre-set the dates on which the acts will be performed, thus dispensing with future subpoenas for the practice of the acts and hearings provided for in the calendar. With this, all the characters in the process are linked, including third parties (CUNHA, 2017). The judgment as a whole is subordinate to the established procedural treatment, because even if the magistrate is replaced by another one, observance of the calendar remains mandatory by the new judge.
Regarding the shared organization of the process, of the diction of art. 357, Paragraph 3 of the CCP, it is extracted that for shared sanitation to occur, the cause must be complex, thus, “the sanitation decision is a complex act that, to be valid, requires the participation of the magistrate and the parties involved. contradictory. Here the need for participation of the parties and the judge is also found in the plan of the validity of the act, since all subjects of the deal. ” (AVELINO, 2016, p.336).
As for the atypical plurilateral procedural deals, the topic is still quite new, lacking deeper digressions on it, however the Permanent Forum of Civil Processualists, in its Statement no. 21 provides that “The following deals, among others, are permissible: oral argument, agreement to extend the oral argument time, advance judgment of conventional merits, convention on evidence, reduction of procedural deadlines. ”
5. CONCLUSIVE SUMMARY
Everything exposed during this brief essay leads us to realize that the new Code of Civil Procedure enshrined the freedom of the parties within the process.
It is easy to see that the legislator’s intention was to allow greater action by the parties in search of the effectiveness of the process as a skillful instrument to reach a faster and fairer decision on the merits.
In this sense, the principle of cooperation gains special importance, as it presents itself as a framework, together with the other fundamental precepts of CCP / 15, for the expansion of procedural legal businesses.
As provided for in CCP / 73, the typical procedural deals already allowed the parties to agree on procedural issues, even in the face of publicity and the cogency of these rules. However, only with the entry into force of the New Code of Procedure, the position of the parties within the procedural march was raised to a level of greater relevance, and they were allowed to carry out atypical procedural conventions.
Art. 190 of CCP / 15 brought the general rule on atypical procedural legal deals, opening the door for various kinds of procedural deals to be signed. As an example, we can mention the non-enforceability agreement, the procedural expenses agreement, the consensual dismissal of a technical assistant, among others.
At first, respecting the self-regulation of the will and the limits imposed by art. 190 of the CCP , it is up to the litigants to transact on procedural issues without the participation of the judge, who should act only in cases where homologation is necessary and always to verify the validity of the procedural conventions presented.
However, there is a divergence in the doctrine as to the businesses in which the judge’s manifestation of will is essential for it to be valid. We understand that the national legal system does not present obstacles as to the need for the judge’s agreement with the parties so that certain acts are formed, if this convergence of wills is fundamental to reach the requirements of validity of the legal business.
The fact that art. 190 of the CCP having expanded the powers of the parties, giving it more autonomy and freedom to transact procedurally, does not mean an impediment to the performance of the magistrate.
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[1] Graduated in law from UFRJ, post graduated in law and criminal proceedings from UCAM, post graduated in civil procedural law applied by EBRADI.
Submitted: October, 2020.
Approved: January, 2021.
