The Role of the Conciliator in the Special Civil Special Court at the 4th Special Civil Court of Macapá-AP, Amazon, Brazil

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DOI: 10.32749/nucleodoconhecimento.com.br/law/special-court
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ORIGINAL ARTICLE

NETO, Dalk Dias Salomão [1], SOUSA, Nicole Moreira Faria [2], DENDASCK, Carla Viana [3], FECURY, Amanda Alves [4], OLIVEIRA, Euzébio de [5], DIAS, Claudio Alberto Gellis de Mattos [6]

NETO, Dalk Dias Salomão. Et al. The Role of the Conciliator in the Special Civil Special Court at the 4th Special Civil Court of Macapá-AP, Amazon, Brazil. Revista Científica Multidisciplinar Núcleo do Conhecimento. Year 06, Ed. 05, Vol. 11, pp. 80-92. May 2021. ISSN: 2448-0959, Access Link: https://www.nucleodoconhecimento.com.br/law/special-court, DOI: 10.32749/nucleodoconhecimento.com.br/law/special-court

SUMMARY

Due to numerous social problems, justice began to be more requested by society. There was an urgent need for a new paradigm, with the creation of special courtcases, based on conciliation, as an alternative means of conflict resolution as a partial solution. The special courts have evolved a great deal since its creation, through law 9.099/95, which proved extremely important for the reorganization of justice, in the face of the great demands of lawsuits. The objective of this work was to analyze the role of the conciliator in the special virtual civil court in the 4avara of the special civil court of Macapá AP, Amazon, Brazil. It is concluded that there was a historical evolution of the special justices, from its implementation through law 9.099/95 to the construction of its principles such as procedural speed, informality and, all pointing to the realization of a faster and more efficient process. PROJUD and TUCUJURIS by computerizing the special courts seem to be important in the modernization of the process, making them simpler, faster and accessible to all and thus following the world’s technological trends. Special courts as a whole should seek to invest more and more in conciliators and actions aimed at conciliation, such as state and national conciliation weeks, because thus, there will be a great possibility that cases in the judiciary gain greater fluency.

Keywords: Special Civil Court, Conciliation, Conciliator.

INTRODUCTION

Due to numerous social problems, justice began to be more requested by society, having problems, such as the large number of procedural demands, delay in judging processes and bureaucracy (Sena and Richa, 2011; Guimarães, 2013).

Adding these situations with the difficulty of access of people with economic hyposufficiency in the judiciary, there was an urgent need for a new paradigm, having as partial solution the creation of special courts, based on conciliation, as an alternative means of conflict resolution (Sérpias, 2015).

The Special Courts in Brazil, formerly called the Small Claims Court, modeled an American structure known as Small Claims Courts. Created in 1934 in New York, with the aim of enjoying civil shares of small value. The main characteristic of this cutting model is the pragmatism proper to American culture, that is, the conflict seen rises to a faster, uncomplicated and easier perspective. It was not necessary the figure of the lawyer, who was requested according to the complexity of the situation (Porto, 2008).

This model of court appeared in Brazil, first in Rio grande do Sul, in 1982, before the functioning of the Conciliation and Arbitration Councils, created with the objective of resolving, extrajudicially, conflicts of small causes, demonstrating a great interest for the construction of a Justice (Silva, 2013).

After gaining prominence in the national scenario, in 1984, the Judiciary had as a milestone Law No. 7,244, which provides for the creation and functioning of small cause courts, being consolidated and legitimized the success of the experience obtained with the Conciliation and Arbitration Councils, having as its duty, to provide an equal justice (Silva, 2013).

From that moment on, several Special Court proceedings are beginning to emerge throughout the country, regulated in state office by Ordinary Law, covering only civil causes of small economic value, first stipulated in up to twenty (20) minimum wages. Thus, it also enabled the most financially devoid of the opportunity and legal guarantee to seek the judiciary in order to obtain a peaceful resolution of their conflicts (Silva, 2013).

The Federal Constitution in 1988 demonstrated the real need for the creation of special justices, and their implementation throughout the country, being a mandatory measure, since it was previously optional to states. The CF assured through its art. 98, item I, the authorization to implement the Special Civil Courts to reconcile, prosecute, judge and execute the civil cases of lesser complexity, as well as special criminal courts to reconcile, judge and execute criminal offenses of lesser offensive potential, through oral and  sumaríssimo (which has no delays or formalities) procedures (Sérpias, 2015).

From the creation of Complementary Law No. 123/2006, with the objective of satisfying the desires of micro and small entrepreneurs about the constitution and regulation of ME and EPP, in order to expand business and develop their growth in the Brazilian economy. Thus, the ME and EPP gained space in the national scenario, and from this general law, the legal provision was created about the possibility of these species of companies, at the State level, having the right to enter the Special Civil Court, appearing in the active pole of the action (Salomão, 2001). Given the possibility of access to special court, these companies can enter their shares without the presence of a lawyer (having a ceiling for the value of the action of up to 20 minimum wages), reducing their expenses. It is important to point out that the cases in the Special Courts are handled more quickly than in the common court, enabling more rapidly the recovery of capital, which until then was lost due to default of debtors (Tolentino, 2011).

In 2001, shortly after the creation of law 9.099/95 (Special Court Law), the extension of the civil court was created to serve microenterprises in Amapá, in view of the reason that they could not demand in the Central Special Court, which was the only one in operation in any state at the time, having as coordinator the magistrate Sueli Pini, currently President of the Court of Justice of Amapá (Serra, 2015).

Soon after the creation of the national statute of ME and EPP, the complementary state law no. 044/2007 was created, where it shows that the benefits of law no. 123/06 were accepted by the Government of Amapá, the Special Court of Microenterprise and Small Business was finally created in March 2012 (Serra, 2015).

The microenterprise court, in Amapá, has a relevant role through the work developed and the number of fruitful reconciliations. Most of the cases, already filed, are due to approvals of agreements, both judicially and extrajudicially. Recounting mainly with the help of its trainee collaborators, who, in most cases, are the conciliators in the hearings. It is important to note that the 4th court of the special civil court of Macapá is the one that has the most trainees of higher law level, in view of their partnerships signed as tjap, Fecomércio, FEMICRO and SEBRAE (Serra, 2015).

Therefore, the special courts have evolved a great deal since its creation, through law 9.099/95, which proved extremely important for the reorganization of justice, in the face of the great demands of lawsuits. As well as the valorization of ME and EPP, gaining space before the special courts, to fight in a more dignified way for their rights, being the 4th court of the special civil court of Macapá (former court of microenterprise and small company of Macapá), pioneer in Brazil.

GOAL

To analyze the role of the conciliator in the special virtual civil court in the 4avara of the special civil court of Macapá AP, Amazônia, Brazil.

METHOD

Quantitative and qualitative research, using data from the 4th Court of the Special Civil Court of the city of Macapá, Amapá, Amazônia, Brazil, on conciliation in judicial proceedings.

RESULTS AND DISCUSSION

The Special Civil Courts are organs that make up the Ordinary Justice, and were created with the purpose of conciliation, process, trial and execution, in the causes of their jurisdiction, disciplined by Federal Law No. 9,099 of September 26, 1995. The bases of these proceedings are guided by the criteria of orality, simplicity, informality, procedural economy and speed, aiming, whenever possible for conciliation, the reparation of the damage suffered by the victim and the application of a non-custodial sentence (Neto and Júnior, 2011).

The real intention of special civil courts is the resolution of problems of access to justice, basically related to the costs and delay of cases, and there are also numerous obstacles that citizens, who call for justice, encounter (Guimarães, 2013).

The Special Civil Justices are increasingly present in the life of the entire population, since their own existence is justified. It is presented by its modern way of acting, by the quality of service and by the interests of its leaders that makes them increasingly agile and accessible (Bacellar, 2003).

Special Civil Court has jurisdiction for conciliation, proceedings and judgment of civil cases of lesser complexity, are examples: cases whose value does not exceed forty times the minimum wage; those listed in Art. 275, item II, of the Code of Civil Procedure; the eviction action for its own use; possession actions on real estate of value not in excess of forty times the minimum wage; extrajudicial executive securities (promissory notes, cheques, contracts), in the amount of up to forty times the minimum wage; collection and compensation for damages (e.g. damage resulting from traffic accidents) (Barouche, 2010).

PRINCIPLES OF SPECIAL CIVIL JUDGES

The creation of special justices is an important milestone for the legal world in all its spheres, making it necessary to highlight the principles that guide this order, both in the search for its meaning, as in the scope and applicability of the legal norm (Porto, 2008).

According to Sérpias (2015) “the purpose of the creation of special civil court esis is to quickly and economically solve the small issues of the citizen in the day to day”. Thus, the law was created based on principles compatible with the facilitation of access to justice of those who seek it.

PRINCIPLE OF ORALITY

Due to the modern mold of special judges, the principle of orality stands out due to its easy applicability. This principle is included among the generals of civil proceedings, with the objective of prevailing procedural acts through oral communication, although these acts may be reduced to writing (Silva, 2012).

In special courtees this principle is much more present, and only the essential is reduced to term. The rest may be engraved on magnetic tape or equivalent, according to Article 13, §3, of Law No. 9,099/95 (Brasil, 1995). This shows that orality has not replaced writing, both of which go hand in hand, since it is essential to make the process and conversion of their procedural acts into term.

The application of this principle also aims to have procedural acts performed in a single stage or at approximate times. Thus, this principle refers directly to procedural speed, since there should not be a very large time gap between procedural practices (Silva, 2012). Thus, this principle seeks procedural simplicity, as a means of facilitating the progress of the process, culminating in its speed.

PRINCIPLE OF INFORMALITY AND SIMPLICITY

The very name of these principles already demonstrates its intention, aim to make the process and access to the judiciary easier, not holding the form itself, but rather to a greater flexibilization of procedural acts, validating them whenever they reach their purpose, according to (art. 13 of Law 9.099/95): “Art. 13 – The procedural acts will be valid whenever they fulfill the purposes for which they are performed, fulfilling the criteria indicated in art. 2 of this Law” (Brasil, 1995)

The principle of simplicity is nothing more than an unfolding of the principle of informality, which in turn is the attempt to make judicial procedures more informal, without that exacerbation of formalisms and bureaucracies. According to Bobbio, the zeal for procedural bureaucracy rather than ensuring full judicial provision effectiveness ended up resulting in the delay of proceedings (Porto, 2008).

A practical example of these principles is the way postal citation is made of legal entities of private law, being valid with the simple delivery of correspondence to any employee in charge of the reception (art. 18, item II, of Law No. 9.099/95), unlike the Code of Civil Procedure that conditions the delivery to certain persons, for example, those who have management or administration powers; (art. 18, § 2 of Law 9,099/95) (Brazil, 1995): “Art. 18 – The quotation shall be made: […] II – in the case of a legal entity or individual firm, by delivery to the person in charge of the reception, which shall be necessarily identified”.

Therefore, these two principles with the main focus of bringing the simplest population to the forum, since the most deprived part of the people and lay people in legal affairs feels shy before lawyers, judges, formalisms and people with more far-fetched vocabularies.

PRINCIPLE OF PROCEDURAL ECONOMY

Another principle is that of procedural economy, which in turn is a guide not only of the special court, but of the general theory of the process as a whole, since through it has as main objective to achieve as many results with the lowest possible economic expenditure (Sérpias, 2015).

Therefore, this principle aims at the largest number of procedural acts being performed in the shortest time and in the least expensive way possible.

PRINCIPLE OF PROCEDURAL SPEED

As for the principle of speed, this comes to ensure the effectiveness of justice, with the aim of making the effects of a sentence, for example, in a practical and fast way and not in a slow way as occurs in many cases, especially outside the special courts (Sérpias, 2015)

According to Sérpias (2015) “The delay in judicial provision has become a rule when it should be an exception. The delay of the end of the process was institutionalized.” Thus, the other principles are nothing more than a conversion to the principle of speed, with the aim of making the process faster.

Therefore, without a doubt, the highest expectation generated by Law 9.099/95 is the promise of speed without violation of the principle of security of legal drains. With the intention of making the process more agile and speedy, and only in this way achieve its main purpose, an efficient response of judicial provision to society.

COMPUTERIZATION OF SPECIAL CIVIL JUDGES- PROJURD

The world has been experiencing a great technological advance in recent years, allied with the lack of physical space to guard numerous processes, especially after the constitution of 1988 and the internationalization of the economy with the creation of the real, factors that leveraged the numbers of lawsuits in the judiciary. Having this, the Brazilian judiciary created the PROJUDI (digital judicial process) society (Silva, 2012).

The main purpose of the creation of PROJUDI aims to speed up justice, reduce costs, increase the capacity of action processing, facilitate the work of lawyers and improve the quality of service to the parties. Thus, it can end those shelves full of papers, since in previous decades the processes were done almost handmade, allowing a reduction of the waiting time for the appreciation of requests, always seeking to resolve conflicts more quickly without causing harm to the parties.

The real revolution began through Law 11.419/2006, with the intention of disciplining the electronic process, with profound changes in the Code of Civil Procedure, and with a view to streamlining, boosting, shortening the path created by bureaucracy and the distance always common in the processes. We can see that two fields have evolved significantly with computerization, agility and procedural speed, because the processes are all transmitted via the Internet without having to leave the office (Carvalho, 2006).

In the question of computerization, the state of Amapá went further, in 2005, created the TUCUJURIS system, a technological device that seeks to manage and develop the activities of the judiciary electronically. Computerizing judicial procedures and performing in the Judicial Secretariats, as well as the storage of the contents of the various procedural acts, thus aiming at greater agility of services, replacing the then present system (Tjap, 2016).

The TUCUJURIS system has been improving over the years, and its procedures have improved more and more, with additions of new features that make it a more integrated software within the scope of justice, diversifying its operationalization, aiming to give greater efficiency the execution of jurisdictional acts by the Servers, Magistrates, Lawyers Defenders and Prosecutors, as well as a faster response to other members of society who use this service (Tjap , 2016).

Therefore, computerization is indispensable for the maintenance of a swift and effective justice, because it makes the judiciary modern, following the technological trends of today.

CONCILIATION IN THE SPECIAL JUDGES CIVEIS

The institute of conciliation is known to the vast majority of Brazilians. However, its application in the field of law, linked to issues applied to conciliatory justice still seems like new to many (Guimarães, 2013).

Although conciliation has been present in the Brazilian legal system since the time of the empire, it was in recent decades that this institute gained notoriety. Since the political emancipation of Brazil in 1822, the constitution of the empire has openly encouraged the resolution of conflicts through non-judicial means, and conciliation is a pre-emptive and indispensable condition for the processing of any cause, with the figure of the justice of the peace as the main means of resolving the litigation (Silva, 2013).

In 1982, the law of the special courts of small causes was published, with the aim of debureaucratizing the judiciary at the national level. Being created in 1984 this court definitively, by law 7.244/84 (Sérpias, 2015).

With the enactment of this law, conciliation once again has prominence in conflict resolution, including inserting the figure of the conciliator, which will be studied later (Guimarães, 2013).

Conciliation is a method used in less complex conflicts, in which the third facilitator can adopt a more active but neutral position with respect to the conflict, not losing impartiality. It is a brief consensual process that seeks an effective resolution of conflicts, within the possible limits, of the social relationship between the parties involved (Sérpias, 2015).

In summary, “conciliation is an institute of the process, because it is one of its moments that produces procedural effects, privileges the inquisitive principle and the role of the intervening judge in the formation of the will of the parties” (Nassif, 2005).

Conciliation is a self-complaceafter process in which an impartial third party (the conciliator) assists the parties to the conflict in order to find a satisfactory solution for all parties (Silva, 2013).

The conciliation in the 4th court of the civil court, is quite developed and practiced, being such a court nationally known for the work developed and number of positive reconciliations. Most of the cases already filed are the fruit of approvals of agreements, both judicially and extrajudicially (Serra, 2015).

We can conclude then that the institute of conciliation is undoubtedly the most widely used and well-known alternative means of conflict resolution in Brazil, enabling justice to quickly resolve its demands, as well as making the possibility of peaceful resolution of lides real.

CONCILIATION STEPS

Conciliation, however informal, has some steps that must be observed by the conciliator in the construction of an agreement, steps that are not rules. However, compliance with these steps helps in the speed and effectiveness of the process (Sérpias, 2015).

Therefore, conciliation has guidelines to be observed, and should not happen by the simple will of the parties or the conciliator. Below we will mention the main stages of conciliation.

THE CONCILIATORY AND ITS CHARACTERISTICS IN THE VIRTUAL CIVIL COURT

The interesting question at this time is the figure of the conciliator in the procedures of Law 9.099/95. Conciliators will preferably be recruited from legal students. So if the law said preferably, it doesn’t make it an obligation. Thus, law scholars can also figure as conciliators. According to Law 9.099/95: “Art. 7. The conciliators and lay judges are auxiliaries of justice, recruited, the first, preferably, among the law students, and the second, among lawyers with more than five years of experience” (Brasil, 1995).

In practice, the vast majority of the conciliators of the Special Civil Court are law students, extracted from universities usually after entering the fifth semester. Being a partnership, where you exchange work for experience, not being different in the 4th court of the special civil court (Serra, 2015).

The conciliator is one of the subjects of conciliation, and must act in a neutral and impartial manner, creating a moment and situation whose parties may feel comfortable to negotiate. He must use his psychology to make conciliation fruitful, through the wills of the parties on opposite sides, that is, the conciliator is nothing more than a facilitator (Porto, 2008).

Even carrying all the emotional burden, during the conciliation hearing the conciliator must be as impartial as possible and neutrally, must ensure the smoothness and legitimacy of the process (Silva, 2013). The impartiality of the conciliator is fundamental to conciliation, this means that it will not privilege any of the parties, much less issue value judgment related to the conflict. It should thus pass confidence to the parties. Only in this way is it possible to build a fair agreement for all (Amaral, 2011).

In relation to the 4th court of the special civil court, being very famous for the number of fruitful reconciliations, obtained in daily hearings or events held sporadically as: state or national conciliation week and “Saturday is also conciliar day”, stands out for the efficiency of its conciliators, and most are trainees of higher level of law, given their partnerships signed between the court itself and the TJAP , Fecomércio, FEMICRO and SEBRAE (Serra, 2015).

Thus, the figure of the conciliator in the face of conciliation is fundamental, because he is the one who organizes and conducts the work. It must act in accordance with the law and guidelines to be observed.

THE EFFICIENCY OF CONCILIATION

Not only is the lack of effectiveness and speed the main problems of justice, other situations help to delay and stop the judiciary. Therefore, through the Federal Constitution of 19888 and regulated by law 9,099/95, special civil courts emerged as a way to expand access to justice and was characterized as an “escape valve” to common justice, changing traditional procedures that were ineffective, especially for the resolution of small conflicts (Guimarães, 2013).

The creation of special courts and the use of conciliation has an effectiveness far beyond what is expected, because in addition to unburdening the judiciary it brought to the scope of justice citizens who until then did not use this means to resolve their conflicts, thus spreading the law and culture of peace (Guimarães, 2013).

Thus, over the years conciliation has been proving effective, since it unwood the judiciary, through the reduction of costs, deadlines and resolution of causes of less complexity, creating new parameters for conflict resolution in justice as a whole, taking into account speed (Guimarães, 2013).

Thus, the greater speed of special judges is based on the idea of speed and effectiveness, and there are two ways to subdivide efficiency, qualitative and quantitative. The quantitative is not concerned with the procedural quality, taking into account only the speed of the procedures and the reduction of costs, while qualitative, in the opposite way, is concerned with the content of the decisions, taking into account their quality regarding compliance and adoption of the democratic process, with all the norms inherent to it (Neto, 2015).

In this sense, we can say that although special courts and conciliation are effective, giving speed to their proceedings does not mean that the problems of the judiciary have been solved, much less can we say that justice as a whole is swift (Barouche, 2010).

In relation to Macapá, special judges are very effective, given the incentive to conciliation (Serra, 2015).

For example, the 4th court of the special court of Macapá, former court of microenterprise and small business, has a very concrete and effective work using conciliation, being nationally recognized for its work that results annually in fruitful reconciliations (Serra, 2015).

During the year, numerous conciliation actions are carried out, such as state and national conciliation weeks, for example. In them, the 4th court of the special civil court of Macapá is always as the ones that make the most fruitful reconciliations (Serra, 2015).

The physical part of the court undoubtedly greatly limits the number of conciliations, but even so, 12 to 25 conciliation hearings are held daily, a number that is a higher number compared to the other special courts of the central court of Macapá (Serra, 2015).

Figure 1- Shows the number of Cases regarding conciliation, instruction and judgment


(Serra, 2015).

Figure 1 shows the efficiency of conciliation hearings held in the 4th court of the special civil court of Macapá. During the inaugural conciliation hearings the percentage of fruitful agreements is higher; and the unsuccessful agreement is smaller (given the presence of the conciliator), in relation to the stage of instruction and judgment, before the judge.

Therefore, we can conclude that the objective of the creation of special courts was achieved in the 4th court of the special civil court of Macapá, because, through conciliation the number of demands resolved through agreements is significant in relation to the other procedural phases. Thus showing the effectiveness of the conciliator as the driver of conciliation hearings.

CONCLUSIONS

In view of the increase in the number of cases, the judiciary seems to have become congested and inefficient, and it is necessary to seek new means for conflict resolution. The response of the judiciary was the creation of special courts using conciliation.

There has been a historical evolution of the special justices, from its implementation through law 9.099/95 to the construction of its principles such as procedural speed, informality and, all pointing to the realization of a faster and more efficient process.

PROJUD and TUCUJURIS by computerizing special courts seem to be important in modernizing the process, making them simpler, faster and more accessible to all and thus following global technological trends

The institute of conciliation proves to be the main alternative means of conflict resolution, a form of self-composition, by which the parties create the solution to the problems, undrowning the judiciary through speed.

Conciliation through speed, low costs and efficiency seem to make the judiciary more attractive to part of low-income society and to the laity in the subject, who believe in the possibility of resolving their problems behind justice, thus generating positive effects on social pacification.

The evolution of the special proceedings, based on conciliation, would not be effective without the presence of the conciliator. It is he who directs the parties to the drafting of an agreement, conducting impartially, guiding the procedure on numerous principles and guidelines. Thus, there should be a greater concern with the formation of these agents, since they are the ones who are at the forefront of most of the demands of the judiciary, dealt directly and daily with the population and its problems, in stressful situations and, sometimes, difficult to reconcile.

Special courts as a whole should seek to invest more and more in conciliators and actions aimed at conciliation, such as state and national conciliation weeks, because thus, there will be a great possibility that cases in the judiciary gain greater fluency.

REFERENCES

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[1] Lawyer, Bachelor of Law (CEAP – Center for Higher Education of Amapá), Specialist in labor law and labor process by the educational institution Damásio.

[2] Lawyer, Bachelor of Law (CEAP – Center for Higher Education of Amapá), specialist in Civil Procedural Law by the institution Damásio Educacional.

[3] Theologian, PhD in Clinical Psychoanalysis. She has been working for 15 years with Scientific Methodology (Research Method) in Scientific Production Guidance for Masters and Doctoral Students. Specialist in Market Research and Health Research. Doctoral Student in Communication and Semiotics (PUC SP).

[4] Biomedical, PhD in Tropical Diseases, Professor and researcher of the Medical Course of Macapá Campus, Federal University of Amapá (UNIFAP), Pro-Rector of Research and Graduate Studies (PROPESPG) of the Federal University of Amapá (UNIFAP).

[5] Biologist, PhD in Tropical Diseases, Professor and researcher of the Physical Education Course, Federal University of Pará (UFPA).

[6] Biologist, PhD in Theory and Behavior Research, Professor and researcher of the Chemistry Degree Course of the Institute of Basic, Technical and Technological Education of Amapá (IFAP) and the Graduate Program in Professional and Technological Education (PROFEPT IFAP).

Submitted: May, 2021.

Approved: May, 2021.

Theologian, PhD in Clinical Psychoanalysis. Has been working for 15 years with Scientific Methodology (Research Method) in the Scientific Production Orientation of MSc and PhD students. Specialist in Market Research and Research in the area of ​​Health

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