O papel do Estado-Juiz na condução do processo civil como condição de possibilidade para a legitimidade das decisões judiciais no estado democrático de direito

Abstract

The present study aims at the identification of the elements that outlined the role of the State-Judge in demeanour of civil process since the Liberal State until the Democratic State of Law. It was found that the role performed by the judge and the parties in Civil Process Law, has clear correlation with the way in which the state is understood in terms of society at a specific time. After a study of the doctrine used by the bourgeoisie, to motivate the rupture of the Absolutist State and its essentially repressive character with the Liberal State conformation, it is observed the formation of a process as "thing of the parties" in which the judge, reproducing a reactive State, should remain equidistant because of the impingement played by the parties, but it must limit itself to the applying of the law. Also, it is noticeable that this ideology permeated in the process plan, although it is synthetically analysed, has limited the jurisdictional activity, as much as possible, to the sphere of provision on the interests of the party. It is also shown that the change in paradigm of liberal principles, turned out to cause a new understanding of the state and its relationship with society. The process, this bias, now seen as a public phenomenon with society interest, shall be assembled based on the figure of the judge, and the State, and consequently the law itself, will no longer be seen as instruments of protection of individual rights, then becoming instruments for the promotion of justice and minimizing social inequalities, characterizing the transition state from the Liberal to the Welfare State. However, welfare concern incorporated by the State was insufficient to provide solution to the problem of equality in the process, gaining prominence, then and there, the need ofdeveloping the participation of the parties in shaping the decision-making procedure in order to perform a restating of the democratic and constitutional process. Animprovedunderstanding of civil process is investigated, in order to perfect the necessary active role of the judge as well as the parties’ participation in the construction of the jurisdictional provision. The structuring of civil process in the bias of a collaboration model process has been performed, which lately has led to some significant changes in the organizational and procedural development, since the necessary balance between the powers of the judge and the parties along the process iter have been inquired, serving therefore to a consideration on a renewed profile of civil process, inserted onto the Democratic State of Law.