A estabilização objetiva da demanda: novas perspectivas

Abstract

The following study examines the prohibition against the modification of the original complaint during the proceeding, in order to demonstrate its correction or its failure. We begin by studying the various theories usually adopted for the individualization of the civil actions, giving special atenttion to the concepts of the claim and the cause of action. This essay analyses the theme in comparative perspective, by studying the procedure systems and the specific rules adopted in Italy, France, Spain, Germany and Portugal, with the scope of giving an account of great procedural systems throughout the world. The comparative exame has the purpose of trying and catching new ideas, in order to offer suggestions to modernize the Brazilian procedure. Following this, we examine also the legal dispositions that are in the Brazilian code of civil procedure as regard this specific issue, the scholastic opinions about them, and the position of the jurisprudence, so as to demonstrate, by the analysis of the real cases, that the Brazilian rules are not the most adequate, and that `s necessary to introduce modifications in the legislation, with the goal of increasing flexibility, conferring prestige on the principle of access to justice. We seek above to comprehend that procedure is not an end in itself, but an instrument to guarantee effectively the protection of rights. Finally, the proposed work tries to provide, to the extent possible, theoretical support to set certain premisses, as to give suggestions to a modern interpretation about the theme, in order to guarantee an appropriate balance between flexible rules about the modifications of the complaint during the process, and the constitutional guarantees of the parties.