Cooperação judiciária processual: flexibilidade procedimental para a efetividade da jurisdição

Abstract

This dissertation focuses on procedural judicial cooperation, an institute of Brazilian law that has recently become more discussed due to the promulgation of the new Code of Civil Procedure, which included among its rules the cooperation mechanisms contained in the Resolution no. 38 of the National Council of the Judiciary. The incipient doctrine on procedural cooperation presents different perspectives on its practice, especially when considering procedural cooperation by means of concerted actions between cooperating judges. On one hand, some scholars argue that it would be impossible to foresee all possibilities for concerted action; furthermore, they argue that cooperative practice requires the will of magistrates. On the other hand, some jurists say that the courts should provide for the criteria for such procedural cooperation, which should not depend on the will of the various judicial organs of the country. Thus, we wanted to understand which perspective is to be supported. In this work, the first position is defended: the courts should not provide criteria, parameters or hypotheses for the practice of cooperation by means of concerted actions between cooperating judges, since there are many possibilities for concerted action and, in addition, voluntariness is constitutive of the cooperative practice. On the contrary, magistrates should be allowed to enter into agreements with each other in a very free way, so that they can make the procedure more flexible, guaranteeing their adequacy to the peculiarities of the demands they must solve, since this is the only way to guarantee the effectiveness of the rights. To argue that this is the perspective that should prevail regarding the practice of the institute, some ideas were explored: the role of the Judiciary in the Democratic State of Law, the type of jurisdiction that this state model demands, and the role of the procedure to ensure appropriate jurisdiction. In order to corroborate this idea, documents of the National Council of the Judiciary, enacted and still in process, were analyzed. In addition, we worked with practical cases, in order to elucidate what was theoretically presented. In addition to addressing the main problem, given that this is a brandnew topic, other modalities or dimensions of judicial cooperation were presented. In addition, it was argued that judicial cooperation, considered more widely, constitutes an instrument that, along with other provisions of the National Council of the Judiciary, allows for the democratization of the administration of justice.