Negócios jurídicos processuais atípicos e seus limites implícitos

Abstract

This research aims to investigate the implicit limits that the legal system sets to the procedural private ordering, in addition to the express parameters already indicated in art. 190 of the Civil Procedure Code. For that, it starts from the hypothesis that the incidence of guarantees that integrate the constitutional model of process will end up removing conventions that do not conform to the precepts of the Constitution of the Republic. It is also conjectured that infra-constitutional elements such as the possible cogent nature of the procedural rule that will be part of the procedural private ordering, in addition to other factors, also seem to limit negotiation freedom, consisting of issues that will also be explored. To corroborate or falsify the hypotheses, the research is developed with a hypothetical-deductive approach method and support in the bibliographic research technique, from data collected from sources such as national and foreign doctrine, journals, dissertations, theses and other materials considered of interest for the study, whose reading and understanding will be essential to supplement the theoretical framework and support the reflections aimed at solving the proposed problem. It was concluded that art. 190 of the Code of Civil Procedure presents itself as a starting point for the control of the validity of procedural private orderings, but, in parallel with the criteria expressed in the law, there are other circumstances that limit conventional freedom. Regarding the infra-constitutional level, it was found that the binding norms, procedural formalism, matters reserved for the law and judicial administration may appear as generic limits to the procedural private ordering. In relation to constitutional norms, the research reveals that the guarantees that are part of the content of due process of law limit, to a varying extent, the content of procedural private orderings, although it is possible to agree on the partial limitation of some of them. The study thus contributes to the expansion of the theoretical bases that guide the judicial activity of controlling the object of procedural private orderings, also providing subsidies for a safer application of the institute by the parties.