A adequação do procedimento às necessidades do caso concreto e os desafios da jurisdição contemporânea: os reflexos da expansão da autonomia privada no processo civil

Abstract

The present thesis aims to analyze the repercussions of private autonomy in the civil procedural law through a cooperative process model. The main premises and the scopes on which the contemporary private autonomy is based are analyzed, allowing built flexibility and procedural adaptation by the parties to meet the needs of the particular case. Another point of the research is the analysis of the conformation of the contractual theory to the civil procedure arrangements, from an updated conception on the contracts admitted in the Civil Law, towards to regulate non-patrimonial situations, in order to provide more theoretical foundation for the judge exercise the control of the validity of the procedural agreements. The contracting parties agreements on the disposition of civil procedural situations and changes in civil procedure are situated in a different context. They are rights that derive from a process of differentiation from each one person, which will have its effectiveness projected in a public environment, respecting party autonomy, covered by the legal in order to compose asymmetric relations and that cannot be regulated in the same way as a regular civil relationship. Under the possibility of giving a contractual aspect to the procedural conventions, the points of incidence of the contractual theory were analyzed in this untypically formed contract, which, due to its characteristics, should be assessed based on answers obtained in a systematic interpretation of the entire legal system, such as compliance contractual justice and social function in procedural contracts. The social function amplifies contractual justice, projecting solidarity over the civil procedure pact, emphasizing equal contractors in fundamental rights allowing a fairness process.