Ordinariedade e sumariedade no sistema processual civil pátrio : das origens no processo romano ao código de 2015

Abstract

The genesis of ordinary procedure is the Roman law, and its roots lie especially in the procedure of “cognitio extraordinaria”, later receptioned by the traditional doctrine, wich was responsible for conceptual mistakes, especially when affirmed that the jurisdiction is defined by cognition, when the “interdicta” - summary procedures by nature - were absorbed by the “action". In modern age - during the liberal period - the ordinariness became a paradigm, by the influence of rationalism. The law was submitted to the methodology of mathematical sciences. The judge became the “mouth of the law” and the biggest asset of ordinariness is designed - the ordinary procedure - slow and declaratory by nature, committed to the certainty and security. Court decisions based in likelihood were rejected by the system, therefore they contradicted the legal core values of this historical period, preventing execution acts during the cognition process. The summary forms of jurisdiction always coexisted with the civil procedure, in greater or smaller extension, since its origin in classical Roman law. This summary forms are different species of jurisdictional activity, which cuts through the entire cognition procedure, and have the ability to quickly and effectively assure the exercise of certain rights. The Brazilian Code of Civil Procedure of 1973 was strongly influenced by rationalism and the ordinary procedure has been elected as a standard. In its original version, the 1973 Code reflected the theoretical assumptions of modern age, creating the legal abstraction called cognition-execution dichotomy. After the re-democratization and the changes in social axiology - influenced by advertising, consumption, technology and science applied to information - The Brazilian Civil Procedure Code of 1973 and the ordinary procedure failed to attend modern social demands, not conforming to democratic-constitutional paradigm for its slowness and inability to perform with effectiveness rights, once its conception was founded on legal fictions, which were away from underlying substantive right. In contrast to ordinariness, holds up the recovery of procedural summarization capable of exerting influence modernizing the justice system, to streamline the civil procedure for the democratic-constitutional paradigm and also bring it phenomenic reality. The 2015 Brazilian Code of Civil Procedure reflects the constitutional process. In its core values, safety and effectiveness are closer to the balance, breaking a significant part of the rationalist ideology, through the valuation of summary forms of cognition.