| dc.description.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. | eng |
