Convenções processuais probatórias: limites objetivos e aplicações

Abstract

Objective: This research examines the objective limits of evidentiary agreements in civil procedure. Based on the normative regulation of the institute and on the specificities of the law of proof, and with the purpose of contributing to the operability of the institute, the research seeks to investigate which aspects of proof may be the object of a procedural agreement, the objective limits for the conventional regulation and the possibilities of use of evidentiary agreements. Methodology: as its qualitative nature, it analyzed domestic and foreign doctrinal works about the object of study and related topics, as well as case law on judicial control of procedural agreements in general. Results: the research elaborates propositions that are added extrinsic limits to the intrinsic limits established by art. 190 of the of the Brazilian Civil Procedure Code; that the regime of validity of procedural agreements is hybrid, being influenced by substantive law as to the structural aspects and by procedural law as to the rules of enactment of nullity; that the enactment of nullity of evidentiary agreements requires adversarial proceedings, being preceded by attempts at self composition, interpretation and substantial conversion of the legal transaction; that there are several typical and atypical agreements that affect evidence as means, as activity and the valuation of evidence as result. Contributions: The proposed ideas recognize the existence of extrinsic limits for the conclusion of evidentiary conventions, being proposed as the fundamental rights and guarantees, good faith and procedural cooperation, the public order, the legal reserve, the powers of the magistrate in the conduction of the process, the administration of the Judiciary, the prohibition of damages to third parties, the proper functioning of the system of precedents and unavailability of the material right in collective and structural guardianship. Criteria for evaluating the conformity of evidentiary covenants are proposed, some of the typical hypotheses are examined and hypotheses of atypical covenants are proposed.