THE JUDGE'S INSTRUCTIONAL POWERS IN CONTEMPORANEOUS PROCEDURAL MODELS AND THE LIMITATIONS IMPOSED BY THE GUARANTEE OF DUE PROCESS OF LAW

Abstract

The Civil Procedure Code of 2015 and the Federal Constitution of 1988 define the current brazilian procedural model, having as pillars, among others, the principles of adversarial proceedings and cooperation, both being expressly procedural fundamental rules. Such finding requires attention regarding the instructional powers of the judge and the right to Due Process of Law as a constitutional system of guarantees at the service of the jurisdictional. The importance of the judge's impartiality in the current procedural model encompasses the fundamental right to proof as a guarantee for the parties in the process, attracting reflection on the limits of the judge's instructional powers and the legitimate right to a neutral and equidistant judgment. In this way, the research aims at performing a critical analysis of the performance of the judicial body regarding the evidential initiative, in the sense of arguing that the judicial activity has the power-duty to preserve not only the right of access to a fair trial, but also the respect for the system of procedural guarantees that are unavoidable for the realization of the solution of the conflict in an impartial way. The methodology adopted consists of a bibliographical review and analysis of the legislation on the subject in Brazil.