Sanitation and organization of the process from the perspective of the new civil procedural system – Law No. 13,105/15

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ARTIGO ORIGINAL 

OLIVEIRA, Adonis De Castro [1]

OLIVEIRA, Adonis De Castro. Sanitation and organization of the process from the perspective of the new civil procedural system – Law No. 13.105/15. Revista Científica Multidisciplinar Núcleo do Conhecimento. Year 05, Ed. 08, Vol. 03, pp. 31-47. August 2020. ISSN: 2448-0959, Access link: https://www.nucleodoconhecimento.com.br/law/sanitation-and-organization

SUMMARY

In this study, conducted by the explanatory research, which had an inductive approach with observance of bibliographic analysis, the theme is the sanitation and organization of the process from the perspective of the new civil procedural system – Law No. 13,105/15. The objective is to present the phase of sanitation and organization of the process, starting with its history and the normative basis, to analyze the activities related to that phase and its importance in Brazilian Civil Procedural Law. In this sense, we sought to follow and demonstrate the systematic procedural line procedurally, making considerations about each of its stages, until reaching the legal consequences. Finally, we presented the planning and the appropriate teaching technique for a class based on this content. As a result of the research, we have deepened the proposed theme with the exhibition of strategy for its approach in the classroom.

Key words: Pedagogical approach, Civil Process, sanitation.

INTRODUCTION

This article seeks to detail the aspects that make up the sanitation and organization of the process, from the perspective of the new civil procedural system (Law No. 13.105/15) and, to this end, the procedural procedural line is pointed out as a facilitating path of this knowledge. In this bias, it seeks to offer a better understanding of the proposed theme, in the scope of satisfactorily presenting the aforementioned theme in the classroom.

The study has as a general objective the conceptual, historical and normative understanding of the legal institute of the sanitation of the process in the new civil procedural system, while the specific objective is to analyze the procedural activities of the sanitation of the process, its stages, incidents and recursal possibility. It is notepoint that the present work was based on an explanatory research, which had an inductive approach with observance of bibliographic analysis (books, scientific articles, electronic media, among others), where we sought to gather the maximum information on the subject under study. In this sense, the inductive approach was used, aiming to constitute the work/research of scientificity.

As for the presentation in the classroom of the theme in question, it should be highlighted that the form proposed in this opportunity is to approach the concepts surrounding the theme, as well as its essential elements, such as: procedural phase, parties involved, ways of performing sanitation and its consequences. To this end, the dialogued exhibition class is the most appropriate teaching strategy, since allied to the production of its own material, practical examples, instigating questions of critical thinking and elements contained in the doctrine and in the jurisprudence of the homeland.

Through all the development of this work, it was possible to make considerations about the proposed problem, namely: in the case of the decision of sanitation and organization of the interlocution decision-making process, can it be appealed by means of instrument aggravation? And the matter decided on sanitation, is it covered by preclusion? Therefore, it was found that the decision in question cannot be aggravated (given the lack of legal provision), and that there is no preclusion of the matter decided, provided that it is raised in possible reasons or contrareasons of appeal.

Thus, in order to attract new knowledge, relevant the observance of the continuity of this work/research, where it is possible to determine the disposition of various information that will certainly contribute to the academic formation, given the scientific support used in the elaboration of the same.

1. PROCESS AND PROCEDURE

The legal nature of both the process and the procedure is closely linked to the evolution of theories on the right of action, since civil procedural law was not regarded as an autonomous branch. Therefore, there was talk of process and procedure only when there was a law (right of action), since it assumed a material right. And, it is in this sense that Beatriz Monzillo Almeida (2013, online) teaches:

[…] legal nature of the process as well as its relationship with the concept of procedure is intrinsically related to the evolution of theories on the right of action. Until the mid-19th century, Civil Procedural Law was not considered an autonomous branch of law. In fact, it was not possible at that time to see the possibility of the action being placed on a plane distinct from the material right. In another, “the autonomy of the legal procedural relationship was not known in the light of the legal relationship of a substantial nature, possibly linking the subjects of the proceedings“. It was understood that there was no action without right and that, therefore, the whole right would correspond to an action that would ensure it. The action, therefore, was not seen as a right of its own, but rather as a facet of material law.

In the civilist conception, Beatriz Monzillo Almeida (2013) teaches that the process in Roman law was seen as a contract in which the parties committed themselves to accept what was established as a result of an agreement. In this bias, Luiz Guilherme Marinoni (2007 apud ALMEIDA, 2013, online) emphasizes that “[…] the characterization of the process cared only about the initiative of individuals, and not with the role of the judge”. At the same time, the process is an instrument of jurisdiction with the purpose of commaking conflicts for the pacification of society and promotion of justice in specific cases brought to the judiciary, and, in the words of Gabriel Wedy (2007, online) process:

[…] analyzed in its etymology, means “march forward”, “walk” [from latim, procedere = keep going]. The process is fundamental to the jurisdiction whose primary purpose is to eliminate conflicts of interest and to do justice in the specific case. In this way it is the instrument by which jurisdiction operates.

In turn, it is pertinent to point out the procedure, referring to the procedural acts committed by the State and the parties, ordered in a logical sequence, in accordance with legal provisions, which in the doctrine of Wedy (2007, online):

[…] is nothing more than the acts of the process neatly concatenated, through legal provision, aiming at the final provision. Subsequent procedural acts are ordered in such a way that they depend on the previous acts. These procedural acts ordered in the form of procedure have as basic characteristics: integration into a procedure, [do not present themselves in isolation] connection by unit of purpose and, finally, interdependence.

Thus, as Humberto Theodoro Júnior (2015) teaches, jurisdiction is one of the functions of the State, which exercises it impartially and with the scope of social pacification (resolving conflicts), in addition to sealing self-protection, since it replaces the litigants, that is, the conflict must be resolved before the State, which will offer judicial provision based on justice. The parties that are part of the proceedings are the State represented by the magistrate and the parties (author and defendant), with the aim of resolving the conflict in a reasonable time, strife for the full solution of the merits, according to the discipline no. 13.105/15 (Code of Civil Procedure) in articles 4 and 6, according to the discipline Theodoro Júnior (2015, p. 373):

[…] the process is only fully established with the participation of three main subjects: State, plaintiff and defendant. […] The process generates a trilateral legal relationship that binds the subjects of the lide and the judge, all seeking a solution to the conflict of interest established around the claim of material law of one of the litigants and the resistance of the other.

There is a difference between process and procedure, being that instrument for the effective of jurisdiction, and this, it is the acts that integrate the process. It should be noted that from the constitutional point of view, the process and procedure are of paramount importance, since this Republic constitutes a Democratic State of Law, where the force of the Law prevails, depending on art. 1 of the Federal Constitution of 1988. Therefore, some fundamental principles should be observed, namely: due process, contradictory and broad defense (art. 5º, LIV and LV paragraphs of CF/88).

2. PROCEDURAL PHASES, SUBJECTIVE COMPOSITION OF THE PROCESS AND PRELIMINARY MEASURES

It is important to highlight that, in observance of the teachings of Humberto Theodoro Júnior (2015), it is clear the existence of 04 procedural phases (in the common procedure), which are: postulatory, sanitizing, instructional and judgmental. The same author continues and emphasizes that in practice these phases do not always present themselves separately, and “sometimes interpenetrate” (common between the postulatory and sanitising phases, for example – as will be seen below).

In the sanitadora phase, the target of this work, the actors who act are the magistrate and the parties, as author and defendant, and there may be the participation of other authors as supporting, to examples of third parties intervening, the content of which sets out Articles 6, 70 and following, 119 and following, all of Law No. 13.105/15. Before dealing with the sanitation and organization of the process itself (sanitary phase – art. 357 of Law No. 13,105/15), it is necessary to make considerations regarding preliminary measures, delimited from art. 347 of Law No. 13,105/15. It is these measures that the judge, in the words of Humberto Theodoro Júnior (2015), should eventually take soon after the deadline for the defendant’s response and are intended to terminate the postulatory phase of the process and prepare the sanitizing phase.

The first situation is the cases of absentia. The default occurs when the requested party, although duly cited, ceases to manifest itself in the case of the demand, demanding as the main consequence the judicial pronouncement, judging in advance the merits, provided that it is possible to verify the presumption of veracity of the facts alleged in the initial, as pointed out in Article 344 of Law No. 13.105/15 and the teachings of Theodoro Júnior (2015, p. 1062), which thus doctrine: “If the defendant does not contest the action, the judge, as a rule, will go directly to the decision-making phase and deliver, from the outset, ‘early trial of the merits” […]”.

Thus, according to Daniel Amorim Assumpção Neves (2016), it has to occur the effect mentioned above the judge passes to the early judgment of the merits and, if it does not occur, will subpoena the author to manifest / specify (if he has not yet acted) the evidence he intends to produce. In time, it is important to point out that the same indoctrinator emphasizes that the defendant revel may produce evidence in order to refute the author’s claims. However, it must be represented in the file in an opportune moment, in order to practice the indispensable acts of evidential instruction, the content of what establishes art. 349 of Law No. 13.105/15 and summary 231 of the SC (Supreme Court).

Another case of preliminary action, occurs when the defendant alleges an impedinating, modifying or extinguishing fact of the copyright, and the defendant will be allowed to offer a replica, that is, the exercise of the adversary by the manifestation of the author party as to a novelty brought by the defendant, such as the illegitimacy of the party, incompetence, connection, being allowed the production of evidence, as provided for in Articles 337, 350 and 351 of Law No. 13.105/15. In this sense, Neves (2016, p. 702) asserts:

[…] retort, opportunity for open manifestation to the plaintiff whenever the defendant pleads in his defense of indirect merit and/or procedural defense. In these two species of defensive matter, the defendant brings a novelty to the process, both when he claims a new fact that is preventative, modifying or extinguishing the author’s right, and when he claims a preliminary defense, naturally not narrated by the author in his application.

It is worth mentioning that in case the defendant claims any preliminary, and in the case of those of defects or irregularities, the legislation (art. 352 of Law No. 13.105/15) allows the plaintiff to provide for the correction of these acts, if they are sanctionable, within thirty days. In this tuning, Neves (2016, p. 702) points out that: “With regard to the defendant’s claim of preliminaries in his challenge, Art. 352 of the New CPC provides that if the judge finds the existence of irregularities or defects, it will determine its correction in a period of no more than thirty days”. It is observed that the replica commonly in the forensic practice has been generalized, since the deadline is opened for the author to manifest itself even when the defense of the defendant is limited to defense of direct merit, and such posture is not supported by the legislation, which is why there is no plausible justification for this, according to the doctrine Daniel Amorim Assumpção Neves (2016).

After the preliminary measures, if necessary, the magistrate following the done, will verify the possibility of the trial according to the state of the process, in attention to art. 354 and following of Law No. 13,105/15, arising from then three options, namely: termination of the process without resolution of merit or resolution, founded on art. 487, items II and III of Law No. 13.105/15, proceed to the partial or total judgment of the merits or seek to remedy the process, designating if it is the case, hearing of instruction and judgment. Such notes are duly supported by the teachings of Jorge Amaury Maia Nunes; Guilherme Pupe da Nóbrega (2016, online):

After the preliminary measures, or not necessary, the judge is fulfilled to the next stage of the proceedings, opening, in front of him, three different paths: the judge (i) may verify that the case already entails extinction by terse sentence (Article 485) or by the so-called “false judgments of merit” (Article 487, II and III); (ii) proceed directly to the judgment, in whole or in part, of the merits itself, whenever the instructional phase is dispensable; or, prejudiced to the previous possibilities, (iii) proceed to the sanitation of the process, appointing, eventually, hearing of instruction and trial.

In this bias, the points that precede the sanitation and organization of the process itself are overcome, an opportunity in which we sought to build a knowledge base, aiming to provide support to make the proper considerations as to what follows.

3. NORMATIVE BASIS: SANITATION AND PROCESS ORGANIZATION

With the construction of the line of reasoning developed up to this point, it is perceived that after taking preliminary measures and overcoming the first possibilities of judgment according to the state of the process, the last one arrives: the sanitation and organization of the process, founded on art. 357 of Law No. 13,105/15. The sanitation of the process, provides the correction of all defects, having two own moments, at the time of preliminary measures (art. 347 and following of Law No. 13.105/15) and in the bulge of the trial according to the state of the proceedings, being the duty of the magistrate and the parties to ensure the regularity and efficiency of the process throughout the procedural relationship, the content of which establishes Articles 4 and 6 of Law No. 13.105/15). In this wake, Eduardo Talamini (2016, online) teaches:

The sanitation of the process – understood as the correction of its eventual defects and organization of its directions – must occur throughout the procedural relationship. There is a permanent duty of the judge to ensure the regularity and efficiency of the proceedings – and with it the parties must cooperate (Art. 6). However, the Code dedicates especially two procedural moments for such activities: the first, on the occasion of preliminary measures (art. 347 et to follow); the second, in the middle of the trial according to the state of the process (art. 357).

Supplementing the provisions presented, it is important to highlight that the sanitation activity and organization of the process does not have an initial milestone, and may begin already in the postulatory phase, but, unlike the beginning, its closure has a precise moment, that is, with the decision of sanitation, being referred to support confirmed by the teachings of Theodoro Júnior (2015, p. 1076):

The function of what the Code of 1939 called a saneador order began, in the system of 1973, to be fulfilled by a whole prolonged procedural phase, the beginning of which can be done with the order of the initial petition and whose termination must be the trial according to the state of the process. There are no necessary and well-defined limits for the beginning of the sanitation activity, nor for its separation from the postulatory phase, but its closure has an exact procedural moment, which is currently situated in the sanitation decision (art. 357).

With regard to the terminology contained in the previous procedural system, “saneador order” (mentioned in the citation above), it is worth noting the lessons of Eduardo Talamini (2016), which stresses that such terminology was an inadequate name, since the act in question was loaded with decision-making content and with the entry into force of Law No. 13.105/15, the term “decision of reorganization and organization of the process” is preferable, since it is an interlocution decision, in the mold of Article 203, § 2 of the law mentioned above.

The sanitation and organization of the process is done by interlocution decision of the magistrate, strictly as established by the regulatory legal diploma. This decision becomes space when the other hypotheses of judgment according to the state of the process are frustrated, that is, when it is not the case of extinguishing the process (with or without resolution of the merits), either because there is no skilled evidential supplement in the file (prevented the early trial – thus requiring the instruction of the done – oral and/or expert evidence) or because there are no hypotheses of negative resolution of the merits, being such a note supported in Talamini (2016, online):

The judgment according to the state of the process will have as content a sanitation decision when it is not a case of extinction of the cognitive phase of the process, with or without judgment of the merits (arts. 354 and 355). It is worth saying: discarded the occurrence of any of the negative hypotheses of the resolution of the merits and also found the impossibility of resolving it, because it is necessary the production of evidence, it is up to the judge to “put the house in order”, verifying that do not hang defects that can then affect the outcome of the process, determining the repair of those that may still exist […].

As for the content/subject matter of the decision on the sanitation and organization of the proceedings, the content of article 357 of Law No. 13.105/15, must resolve pending procedural issues (if any); delimit the questions of fact (for evidential instruction) and law (relevant to the decision of the merits); specify the means of evidence admitted; define the distribution of the burden of proof (observing the established by art. 373 caput, § 1 of Law No. 13.105/15 – theory of the dynamic distribution of the burden of proof) and designate hearing of instruction and judgment (if necessary). In addition, Neves (2016, p. 711) emphasizes:

[…] sanitation – and now also organization – of the process remains a complex procedural act, as attested by the items of Art. 357 of the Novo CPC, and it is up to the judge, at that procedural moment: to resolve, if any, the pending procedural issues; delimit the questions of fact on which the evidential activity will fall, specifying the accepted means of proof; define the distribution of the burden of proof, observing Art. 373 of the New CPC; delimit the questions of law relevant to the decision on the merits; and, if necessary, designate an inquiry and trial hearing.

Humberto Theodoro Júnior (2015), pronounces that eventually there may be a sanitation hearing and organization of the process, when the cause is complex in nature, being the same held in cooperation with the parties. Sanitation in cooperation escapes the rule, that is, written sanitation made by the magistrate, and that type of sanitation must be carried out when there is complexity of fact and law (in hearing and in cooperation with the parties), according to the procedural legislation (art. 357, § 3 of Law No. 13.105/15). However, Neves (2016, p. 714) does not see its realization in causes of little or no complexity, indoctrinated:

[…] system of the new procedural diploma seems to have prestigious the written sanitation of the process, since, according to Article 357, § 3, of the New CPC, it is reserved to hold a hearing only for the causes of greater complexity in matters of fact or law, even if it seems possible to the judge its designation in causes of small or no complexity. It is, of course, an exceptional situation, considering that most of the demands are of little complexity and thus will not require the appointment of an audience for its sanitation and organization.

In order to highlight the possibility of holding the sanitation hearing and organization of the process even in non-complex causes, it is necessary to point out the statement 298 of the PFCP (Permanent Forum of Civil Proceduralists) in verbis: “(art. 357, §3º) The hearing of sanitation and organization of the process in cooperation with the parties may occur regardless of whether the cause is complex. (Group: Petition, response of the defendant and sanitation)”.

Also, the magistrate in a sanitation hearing and organization of the process call the parties to “integrate or clarify their allegations”, is what Neves (2016) called “shared sanitation”. In this sense, when the sanitation is carried out in a written manner by the magistrate, it will be a unilateral act, while the oral act, when performed in cooperation with the parties, even if under the command of the magistrate, it will be a collegiate act, according to neves’ teachings (2016, p. 714):

[…] note that in addition to the duality of forms of sanitation and organization of the process, there will also be different procedural techniques to be employed depending on the concrete case. After all, Paragraph 3 of Art. 357 of the New CPC provides that, if there is a hearing, the reorganisation will be done in cooperation with the parties, and the judge may even, in this act, invite the parties to integrate or clarify their allegations. This is called “shared sanitation”.

Once it has established that the decision is a decision that is interlocuous, and that in the words of Humberto Theodoro Júnior (2015) it is that issued at the end of preliminary measures, establishing that the process is in order and that the evidential phase can begin, since it will be possible to judge the merits and, for this, there will be a need for the production of oral and/or expert evidence. It is therefore necessary to supplement the established knowledge and to present the legal consequences of the reorganisation of the case, as well as the possibility of appeal against the sanitising decision.

4. SANITATION OF THE PROCESS AND ITS LEGAL CONSEQUENCES – POSSIBILITY OF APPEAL

Once the decision of sanitation and organization of the process is issued, one or both parties may be resigned to what had been decided in it, and the analysis of art. 1.015 of Law No. 13.105/15 together with the teachings Humberto Theodoro Júnior (2015), it is clear that there is no immediate appeal against that decision, given its absence in the list of the above-mentioned legal provision. This list, according to José Rogério Cruz and Tucci (2017, online): “The doctrine and the courts, in general, have interpreted […] as ‘taxing’, not admitting exceptions”. However, the party may use the right to request “clarifications and/or adjustments”, in the form of Art. 357, § 1 of Law No. 13.105/15. Regarding this request for clarification and adjustments, it should be the same within the (common) period of five days, and after this deadline the decision becomes stable, according to Theodoro Júnior doctrine (2015, p. 1080):

There is no prediction of injury against the sanitation decision. It assures, however, Article 357, § 1, to the parties, “the right to request clarification or request adjustments, within the common period of five days, after which the decision becomes stable”. These requests for clarification and adjustments are not subject to appeal and therefore cannot, in their absence, make the matter based on sanitation preclusa. If any approximation has to be made with the code’s recursive system, the request for clarification would be equivalent to declaration embargoes, which are known not to have the function of challenging the embargoed decision.

In compliance with the text cited, it should be noted that the request for clarification and adjustments does not equate to recourse, since it does not have the power to amend the contested decision, and that if any comparison were made with the recursive system, that measure would approach the declaration embargoes (which has no impudeable force). Humberto Theodoro Júnior (2015), teaches that after the deadline for request for clarification and/or adjustments the decision becomes “stable”; it means that the parties will no longer be able to complain against the judicial act, except through the reasons or contrareasons of appeal (preliminary), at the end of the demand (art. 1.009, § 1 of Law No. 13.105/15).

In time, it is worthnoting to point out that there may be matter decided in a sanitising decision that challenges immediate appeal, which is an instrument injury, provided that there is legal provision for this (art. 1.015 of Law No. 13,105/15 or any other legal provision), and the absence of appeal will import in penalty of preclusion, and such weighting is supported by the teachings of Theodoro Júnior (2015, p. 1080):

There […] may be preclusion around a matter resolved in the sanitation, when it involves partial termination of the process, due to the resolution of pending procedural issues, as provided for in Art. 357, I, if against the decision the injured party does not file an appeal for aggravation of an instrument, expressly provided for in the arts. 354, sole paragraph, and 356, § 5.

It should also be mentioned that there is also no need to talk about preclusion on issues relating to the production of evidence decided in the sanitizing decision, since according to Humberto Theodoro Júnior (2015) such matter even when requested (or even when not) and denied in the sanitizing decision, it does not preclude because the activity of the magistrate in this case is much broader than that of simply deferring or rejecting the production of evidence. That is, at any time in the process the magistrate may be provoked to determine the production of some evidence or even determine the same office, if necessary, strictly what establishes art. 370 of Law No. 13.105/15.

As Humberto Theodoro Júnior (2015) teaches, the same is the case with public order issues such as, for example, absolute incompetence, insant nullity, the thing judged, the procedural presuppositions, the conditions of the action, pursuant to Art. 485, § 3 of Law No. 13.105/15, and may be examined by office at any stage of the proceedings, not being reached by the preclusion until final transit, and may be alleged at any procedural stage and degree of jurisdiction. It is important to emphasize that the matters resolved in the sanitizing decision are not achieved by temporal preclusion, which does not occur with logical and consumative preclusions, according to the teachings of Theodoro Júnior (2015, p. 1081):

[…] there is no preclusion around the issues solved in an interlocution decision not subject to injury, temporal preclusion is aimed at temporal preclusion and, not, logical and consummate preclusions. If, for example, the party has opted for another procedural measure other than that rejected by it, and which is undoubtedly incompatible with it, there is undoubtedly logical preclusion, so that there will be no way to discuss the question in the preliminary question of the appeal. Similarly, when a challenge route is chosen, before the appeal, to attack the non-aggravation decision, such as a warrant, it will also not be necessary to re-discuss the subject in the preliminary appeal or in the contrareasons, consumable preclusion has occurred.

Thus, it is observed that logical preclusion can be determined in situations where the individual chooses another procedural measure other than that rejected in the decision of sanitation and organization of the process, and that with it is incompatible. Consumable preclusion occurs when the decision is attacked before the appeal, that is, by another procedural means (e.g.: Warrant).

5. PEDAGOGICAL APPROACH TO THE THEME SANITATION AND ORGANIZATION OF THE PROCESS

In the search to provide the best form of learning to academics, it is appropriate to briefly mention the concepts surrounding the theme, as well as its essential elements, such as: procedural phase, parties involved, ways of performing sanitation and its consequences. Therefore, it is perceived that the most appropriate teaching strategy is the dialogued exhibition class, since the interesting thing about this strategy is that the academic is not considered as a “blank sheet”, and his previous knowledge is considered in the teaching process, so much so that this strategy seeks the active participation of students. This type of class still requires thought operations, such as: interpretation, criticism, data retrieval and observation, among others; such operations are indispensable for satisfactorily understanding of the proposed theme. All these points are properly supported by the doctrine of Léa das Graças Camargos Anastasiou; Leonir Pessate Alves (2009, p. 79), where the concept of this class is presented:

It is an exhibition of the content, with the active participation of students. Whose prior knowledge should be considered and can be taken as a starting point. The teacher leads the students to question, interpret and discuss the object of study, based on recognition and confrontation with reality. It should favor critical analysis, resulting in the production of new knowledge. It proposes the overcoming of the passivity and intellectual immobility of students.

The use of the exhibition dialogued class, propitious to the intervention of the students during the class, an opportunity in which they can make considerations, questions about the theme under study, with mediation controlled by the teacher, with scope of construction and elaboration of the synthesis of the studied matter, and this statement is supported by the teachings of Anastasiou; Alves (2009, p. 79):

[…] it should be such that “the thread of the sin” can be interrupted with questions, observations, interventions, without the teacher losing control of the process. With the continuous participation of the students, mobilization is guaranteed, and the conditions for the construction and elaboration of the synthesis of the object of study are created.

The teacher should consider the peculiarities of individuals/students, valuing their potentialities and experiences, applying a humanistic pedagogical approach. In this sense, the class would be planned taking into account the knowledge already retained by the students in previous semesters (basic concepts: action, parties, process, procedure, jurisdiction, competencies, etc.). Soon, the planning of the class would start from the preliminary arrangements and then begin to deal with the possibilities of judgment according to the state of the process, finally pondering the sanitation and organization itself (art. 357 of Law No. 13.105/15). In this bias, the class would be planned based on the aforementioned humanistic pedagogical approach, which in the words of Elicio Gomes Lima (2014, online) refers to a teaching centered on the student. See:

That is, in the subjectivity of the human person, the experiences of the subjects are valued and stimulates their autonomy to act in social life. Professor establishes dialogue with the student, and recognizes him as a subject with potentialities capable of producing knowledge. Learning becomes meaningful and transformative, the subjects (educator/student) are protagonists of their history.

Furthermore, the teacher may use support material in order to supplement his class and facilitate/mediate knowledge, since such material combined with practical cases would have the scope to provoke the students, that is, to instigate them to critical thinking, as Anastasiou points out; Alves (2009, p. 91): ” […] the detailed and objective analysis of a real situation that needs to be investigated and is challenging for those involved”. This time, it is found that the class dialogued exhibition (theory), together with the study of practical cases, provides a wider range of retention and understanding of the content, besides sharpening the interpretive capacity of the students, fostering among them the debate on the proposed theme and interdisciplinarity with other branches of law, given the challenging level of the proposal highlighted by the above-mentioned authors.

As for the evaluative issue of the students, in order to assess the level of assimilation of the content presented, it is possible to make use of what had been mentioned above and, supported by Elicio Gomes Lima (2014), that is, to present practical cases observing the capacity of academics to solve problems, combining them with the resolution of questions/problems, as well as group work with teacher mediation to determine the level of understanding and interpretation of texts (legal, doctrinal and jurisprudential) to solve these issues.

In the same wake, in attention to the teachings of Elicio Gomes Lima (2014), the teacher should act as a mediator of knowledge, where he will seek to encourage academics to develop critical thinking and the ability to locate themselves in the process, as well as understand the importance and practical applicability of the content presented, opportunistic progress in the matter with the security that the applied was properly sedimented.

FINAL CONSIDERATIONS

After constructing a systematic line of the sanitising phase, starting from the preliminary measures and arriving at the trial according to the state of the process, precisely in the decision of sanitation and organization of the process, it was possible to make considerations on the proposed theme, especially the problem presented: in the case of the decision of sanitation and organization of the interlocution decision process, can it be appealed to it by means of instrument aggravation? And the matter decided on sanitation, is it covered by preclusion?

In this interim, it is immediately necessary to highlight that through the study developed it was evidenced that although the decision of sanitation and organization of the process is a true interlocution decision, it does not challenge appeal, it is worth saying, aggravation of instrument, since it is not included in the list (taxing) of art. 1.015 of Law No. 13.105/15, which provides for the hypotheses of the appropriateness of said appeal.

However, it should be pointed out that even if it is not possible to appeal against that decision by means of the instrument, the matter dealt with therein does not preclude, that is, the party does not lose the right to challenge the decision, and any non-compliance with the provisions of the judicial act may be raised at an appropriate time, that is, in the reasons or contrareasons of appeal (preliminary). Thus, it is clear that it is not possible to immediately appeal the decision of sanitation and organization of the process, and its discussion is postponed until after the final decision (judgment), according to interpretation of art. 1.009, § 1 of Law No. 13.105/15. It is worth noting that the request for clarification and/or adjustments provided for in Article 357, § 1 of Law No. 13.105/15, with a kind of appeal, should not be confused, given its total lack of challenge force. Therefore, if any comparison is made between that application and the recursal system, the most that could be similar to that of declaration embargoes (which has no impeachable force).

Furthermore, it is important to point out that the stabilization of the decision, after the deadline for the submission of the request for clarification s and/or adjustments, does not at any time prevent the filing of an appeal (appeal), after the judgment has been delivered. That stabilisation, only prevents the challenge of the matter decided therein, until the final judicial manifestation of the Judgment, an opportunity in which an appeal may be brought in preliminary or contrareasons of appeal to resign as to the decision of reorganisation and organization of the process, as already mentioned in the development of that work.

It is appropriate, it is important to highlight that when it is said that the issues resolved in sanitation do not preclude, such preclusion concerns only the temporal, that is, the logical and consumative preclusions can occur, even in the case of issues resolved in the decision of sanitation and organization of the process. In time, it should be noted that even if the decision of sanitation and organization of the process is not subject to appeal via aggravation of instrument, there are matters dealt with in such a decision that may be aggravated (provided that there is legal provision for this), is the case of the partial termination of the process, the content of what establishes articles 354, single paragraph and 356, § 5, both of Law No. 13.105/15.

This time, it is perceived that the theme in question besides being thorough and demanding diverse knowledge for its understanding, is of paramount importance for the organized and systematized understanding of the new civil procedural system, since it is in the decision of sanitation and organization of the process that is concluded by the aptitude or not of the process for judging its merits, being imperative to know when to appeal , as well as the coverage or not of the matter by preclusion in order to avoid bitter damage.

In view of the content presented, it was found that it is thorough and requires a range of other knowledge, and for their approach in the classroom we opted for the dialogued exhibition class, the most appropriate teaching strategy, since it allows the teacher to evaluate the level of previous knowledge of the student, mediating the knowledge. Such measurement is of its importance, since the academic should not be considered as a “blank sheet”, on the contrary, one should exploit to the maximum his burden of prior knowledge, in order to boost and facilitate the mediation of knowledge, as well as its understanding.

In this wake, the use by the professor of his own material, combined with the resolution of practical cases and problem issues, is relevant, besides promoting the interpretation of legislation in line with doctrine and jurisprudence, in the scope of provoking the student’s interpretative capacity and thinking critically about the content under discussion. Furthermore, it is interesting to note that in the dialogued exhibition class the academic can perform specific interventions, clarifying his doubts, besides being able to collaborate and/or socialize his previous knowledge with the other, which undoubtedly favors the teaching process.

REFERENCES

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ANASTASIOU, Léa das Graças Camargos; ALVES, Leonir Pessate. Processos de Ensinagem na Universidade. 5º. ed. cap. 3. Joinville: Univille, 2009.

BRASIL. Código de Processo Civil. Lei n°. 5.869 de 11 de janeiro de 1973. Disponível em: <http://www.planalto.gov.br/ccivil_03/leis/L5869.htm>. Acesso em 17 jan 2020.

BRASIL. Código de Processo Civil. Lei n°. 13.105 de 16 de março de 2015. Disponível em: <http://www.planalto.gov.br/ccivil_03/_ato2015-2018/2015/lei/l13105.htm>. Acesso em 05 jan 2020.

BRASIL. Constituição (1988). Constituição da República Federativa do Brasil de 05 de outubro de 1988. Disponível em: <http://www.planalto.gov.br/ccivil_03/constituicao/constituicaocompilado.htm>. Acesso em 05 jan 2020.

BRASIL. Fórum Permanente de Processualistas Civis. Enunciado nº 298. (art. 357, §3º) A audiência de saneamento e organização do processo em cooperação com as partes poderá ocorrer independentemente de a causa ser complexa. (Grupo: Petição inicial, resposta do réu e saneamento). Disponível em: <http://www.cpcnovo.com.br/wp-content/uploads/2017/05/FPPC-Carta-de-Florianopolis.pdf> Acesso em 18 jan 2020.

BRASIL. Supremo Tribuna Federal. Súmula nº 231. O revel, em processo cível, pode produzir provas, desde que compareça em tempo oportuno. Disponível em: <http://www.stf.jus.br/portal/jurisprudencia/menuSumarioSumulas.asp?sumula=4151> Acesso em 18 jan 2020.

CURIA, Luiz Roberto; CÉSPEDES, Livia; ROCHA, Fabiana Dias da (orgs.); SARAIVA, Editora. Vade Mecum Saraiva. 20ª. ed. São Paulo: Editora Saraiva, 2015.

LIMA, Elicio Gomes. Abordagens pedagógicas e influência metodológicas. On-line, São Paulo, 20 de set de 2014. Disponível em: <https://pt.slideshare.net/ElicioGomesLima/abordagens-pedaggicas?qid=f22f06e5-1177-43bc-8bc7-06089f409d01&v=&b=&from_search=1>. Acesso em 10 fev 2020.

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NUNES, Jorge Amaury Maia; NÓBREGA, Guilherme Pupe da. Providências preliminares e julgamento conforme o estado do processo no CPC/2015. On-line, Brasília, 09 de mar. 2016. Disponível em: <http://www.migalhas.com.br/ProcessoeProcedimento/106,MI235394,11049-Providencias+preliminares+e+julgamento+conforme+o+estado+do+processo>. Acesso em 15 jan 2020.

PIETRAFESA, José Paulo; BORBA, Odiones de Fátima (orgs.); SILVA, Débora Cristina Santos; PEREIRA, Libna Lemos Ignácio. DO CONTEXTO AO TEXTO: Os desafios da Linguagem Científica. Goiânia: Kelps, 2013.

TALAMINI, Eduardo. Saneamento e Organização do Processo no CPC/15. On-line, Curitiba, 07 mar. 2016. Disponível em: <http://www.migalhas.com.br/dePeso/16,MI235256,11049-Saneamento+e+organizacao+do+processo+no+CPC15>. Acesso em 15 jan 2020.

THEODORO JÚNIOR, Humberto. Curso de Direito Processual Civil. 56ª. ed. vol. I. Rio de Janeiro: Forense, 2015.

TUCCI, José Rogério Cruz e. Ampliação do cabimento do recurso de agravo de instrumento. On-line, São Paulo, 18 jul. 2017. Disponível em: <https://www.conjur.com.br/2017-jul-18/paradoxo-corte-ampliacao-cabimento-recurso-deagravo-instrumento>. Acesso em 16 jan 2020.

WEDY, Gabriel. Processo e Procedimento. On-line, Porto Alegre, ano 7, nº 625, 13 de julho de 2007. Disponível em: <http://www.tex.pro.br/home/artigos/75-artigos-jul-2007/5645-processo-e-procedimento>. Acesso em 07 fev 2020.

[1] Graduated in Law from the Evangelical Faculty of Goianésia/GO; specialist in Teaching of Legal Education and Legal Practice, by the same institution; master’s degree in Technology and Environment Society from the University Center of Anápolis/GO, Lawyer and Professor.

Sent: February, 2020.

Approved: August, 2020.

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