Jurisdição, verdade e princípio dispositivo: dos limites à autonomia das partes na fixação dos fatos e na formação da prova

Abstract

The work investigates the factual and evidentiary availability in the jurisdiction, with an emphasis on disputes over available rights. Based on the outline of the historical evolution of the notion of "public interest" in procedural law and Administrative Law, it seeks to demonstrate that contemporary procedural systems reconcile the autonomy of the parties and state authority in the conformation of their institutes, overcoming the obsolete dichotomy between "privatism" and "publicism" in jurisdictional activity. The analytical framework provided by the dogmatic foundations of the dispositive principle - freedom, judicial impartiality and legal certainty - guides the study of the extent of the official investigative initiative in both doctrine and jurisprudence of the Superior Tribunal de Justiça, in addition to providing subsidies for a critical rereading of the role reserved by traditional literature to the magistrate in the field of facts. It is proposed to abandon the hyper-publicistic clichés of "truth" and "justice", as well as to demarcate clear limits to the freedom of litigants in the disposition of facts and evidence, marked by positive law. It is argued that the old demonstrative conception of evidence - still predominant in traditional doctrine and in the pronouncements of the STJ - was supplanted by the theory of the rhetorical-persuasive function of evidence, based on rationality, contradictoriness and rigorous justification of the probative decisions: the formation of the constitutive facts of the procedural "truth" is a procedural and dialogical construction.