A nova sistemática processual e a efetivação do direito fundamental de acesso aos métodos de resolução consensual de conflitos: a necessidade de reconfiguração do conceito de interesse

Abstract

This thesis proposes the conceptual analysis of procedural interest, one of the fundamental elements of the General Theory of the Process. The study is based on the premise that the 2015 Code of Civil Procedure, by introducing access to consensual methods as a preferred method of conflict resolution, actually modified the very conception of the legal system and established intersystemic coexistence between positive law and socionormative orders, thus giving rise to a corresponding intermethodological relationship between legal-coercive methods and consensual socionormative methods of conflict resolution. The fundamental-normative guarantee of institutional access to self-composing methodologies, in preference to adjudicative solutions, makes it necessary to identify the logical-legal category that allows the effective exercise of this right, considered by common sense only as a procedural incident or a mere individual faculty not included in the categories of procedural law. The result of this investigation identified the need to carry out a new conceptual synthesis in the legal category of the interest to act or procedural interest, so that it begins to include, among its functions, and the exercise of the right of action, in addition to access to the process judicial and traditional jurisdiction, also access to consensual methodologies, thus making effective the preferential right guaranteed by the fundamental rule of the Civil Procedure Code. The general object of this thesis, therefore, is to investigate the intersystemic relationship between positive law and socionormative orders, then proceeding with its specific objective to identify in the legal category of interest in acting the necessary function to make the guaranteed fundamental right effective. by the principle of the Code of Civil Procedure. The present investigation adopts a metatheoretical epistemology, when analyzing the logical concepts and respective elements of the categorical structure of access to conflict resolution methods, and, methodologically, follows a logical-deductive methodological reasoning based on the analytical-conceptual premises found in research with the support of specialized legal and extralegal bibliographical review.