The new code of civil process: cogitations about the mail positive and negative aspects of the technical-systematic aspects of the project approved by the senate

Authors

  • Camilla Mattos Paolinelli Pontifícia Universidade Católica de Minas Gerais

DOI:

https://doi.org/10.18316/964

Keywords:

Code of Civil Procedure, positive and negative aspects, rights and fundamental guarantees, celerity, instrumentalist concept

Abstract

This reflection intends to highlight the main positive and negative aspects of the technical structure and systematic design of the new Code of Civil Procedure approved by the Senate on 15.12.2012 (PL 8.046/2010). The theoretic line adopted for the theoretical analysis of the normative content of the project consists of an association between the structural and constitutional theories of the process with the guideposts Habermas’s proceduralism (Escola Mineira de Processo). It seeks to highlight the major gains of the new technical and theoretical systematization, concerned with the harmonization of procedural law with fundamental rights and guarantees provided in the Federal Constitution /1988 and the effective rights. It also examines the main aspects that are the subject of controversy and criticism in the new text as the search for speed at any cost, the overvaluation of the role of judges, encouraging the creative activity of the courts, the use of alternatives that limit conciliatory dialogue between the parties, limited resources, all in the desire to fight lengthy procedures; in addition to the obvious technical inconsistencies present
in some devices that still retain anti-democratic and authoritarian in its theoretical underpinnings. It appears finally that despite significant improvements, the approved text still retains instrumentalist conceptions of process related to the theory of the case as a legal relationship.

Author Biography

Camilla Mattos Paolinelli, Pontifícia Universidade Católica de Minas Gerais

Mestranda em Direito Processual pela PUC/MG

Graduada em Direito pela Faculdade Mineira de Direito da PUC Minas com intercâmbio acadêmico na Universidade de Coimbra

Pesquisadora do Núcleo de Apoio à Pesquisa (PUC/MG)

Estagiária de Docência do Prof. Doutor Ronaldo Brêtas de Carvalho Dias

Advogada militante

Currículo Lattes: http://lattes.cnpq.br/2532984344080424.

 

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Published

2013-11-08

Issue

Vol. 1 No. 1 (2013)

Section

Articles

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