A lealdade processual na prestação jurisdicional: em busca de um modelo de juiz leal

Abstract

This doctoral dissertation addresses the issue of the recognition of the principle of procedural fairness in adjudication, and the consequences this ensues. Since this is a novel way of looking into procedural fairness (which, historically, has been developed by scholars and case law basically from the perspective of the parties and sometimes from the perspective of counsel), there was a need to develop, in the first part of this study, the theoretical assumptions that are able to support the topic, namely: the constitutionalization of procedural law, the new features of jurisdiction as implementing fundamental rights, and the insertion of the general clause of procedural fairness, with their respective corollaries. The second part of the study, in turn, sets out parameters aiming at defining what has been called "a new judge model", by necessarily revisiting the traditional guarantees connected to adjudication and to the judiciary itself. In order to meet this objective, this study lists the essential elements of the "loyal judge", participatory adversarial process, procedural cooperation, and case management. In the third and final part, after a brief examination of the theories of abuse of rights, this study raises a number of cases of judicial abuse, in order to, in a contrario sensu approach, get closer to the loyal judge model. Finally, procedural sanctions applicable to magistrates working under the Brazilian legal system were addressed, and recommendations have been made, based on existing and future legislation, aiming at improving the forms of fighting judicial abuse and of chiefly respecting fair process.