A positivação do princípio da consensualidade no Código de Processo Civil de 2015 e suas repercussões no processo judicial brasileiro

Abstract

The present research, considering the paradox between the legal framework of adequate handling of conflicts and the reality in the jurisdictional practice, in which many conflicts are taken to the judiciary to obtain an impositive answer, starts from the hypothesis that the containment of litigation in relation to conflicts already judicialized could be the result of the understanding that the principle of consensuality was positive, in the normative regime of the Code of Civil Procedure – CPC. The general objective of the research is to systematize the influences of the incorporation of consensuality in contemporary Brazilian civil procedure. It adopts as premises the studies on the renewal waves of the right of access to justice and the theoretical formulations of multidoor justice. Regarding the structure of this work, the analysis proceeds in the following sequence: (i) the relationship between the development of fundamental concepts of the General Theory of the Process and the reinterpretation of the right of access to justice, added to the paradigm of multidoor justice ; (ii) the consensus and its forms are investigated, defining the jurisdictional consensus; (iii) an understanding of consensuality is developed as a principle and fundamental legal norm established in contemporary Brazilian civil procedural law, seeking to understand its influences in the judicial process; (iv) presents the main conclusions drawn throughout the research. Using the hypothetical-deductive research method, through the mentioned path, through bibliographical and documentary research techniques, it was concluded that the principle of consensus, in the search for jurisdictional consensus, is an implicit principle and fundamental rule of procedural law , which (re)structures the state judicial process as a hybrid instrument for dealing with conflicts, with repercussions on fundamental institutes of the process and on the attitude of procedural agents, being able to act to contain the litigiousness of demands already filed and, thus, confirming the hypothesis main.