A primazia fundamental do mérito no processo civil: análise crítica da flexibilização e protagonismo.

Abstract

The primacy of merit is not only a wish, being a need, it is fundamental to people, especially in the face of an emerging social complexity, qualified by a formalism not contextual already in the judiciary, that today gives more attention to numbers than to content, reflected in a defensive jurisprudence in front of a technique in replacement of a state indifference that became notorious and thrives under a formalist variant of flexibilization. The merit, then, is the object to be investigated, such as the proceeding to it. The problematization will be given in the identification of the merit dogmatically, from the philosophical language paradigm and not of the consciousness, surpassing the classic dogmatic towards the post-positivism. The process instrumentality points to jurisdiction and just to jurisdiction, being the main focus of the majority of the studies and legislative reforms. Therefore, the merit delimitation is essential, with the abandonment of dogmas, the attention to the which is based on the awareness act, with no disregard of our juridical system with Italian features, otherwise we will not overtake the antidemocratic scheme subject-object, a historical dogma based on the judge as the only subject. There will be revisited the Civil Process Codes of 1939 and 1973, that considered merit and litigation as synonyms, and to what Savigny, as a character that got recognized in Law Historical School, already underlined about the problem of merit and the consequences of the judgement of the primary cause to the successive cases, especially with the respect to the modification of the request and of the objective limits of the judged thing. The methodology used will be the study of the case REsp number 1.352.721/SP, judged by STJ rendered on the special appeal and in defensive stance, through which the critical analysis of the legal speech will be made, in an exploratory way, from the ideological criteria contrived by Thompson in order to identify acts of will and not of ry much questioned, however, very little has been talked about the democratic version, has to start from the will autonomy as self-restraint of the flexibilization and of the protagonism, from which it has been unveiled the need of investigating the availability and the procedural freedom, being found out in the Spanish law source in that regard. The current procedural movement emerges in order to give the maximum amplitude to the merit, encountering in the article 503 of CPC a new dimension of the judged thing, bringing back the dichotomy about if the cause of action integrates the merit, what the doctrine and the jurisprudence already underscored. It has been concluded, nevertheless, that the merit is a rule, a procedure, and not a principle, whereas in its delimitation, de lege lata, the merit continues to be only the request, with the cause of action being used to delimit it, which can, exceptionally, be part of the merit, a new paradigm so far proposed in the restrictiveness, distinguishing the merit from the process, from the merit to the process. So, de lege ferenda, it is suggested the application of the stability to the cause of action as a solution to what has been used today as preclusive effectiveness of the judged thing, in order to guarantee to the autonomy of the will its maximum amplitude, by limiting itself, instead of by the jurisdiction.