O sistema recursal civil brasileiro e o direito fundamental ao contraditório : recursos de apelação, agravo de instrumento, agravo interno e embargos de declaração

Abstract

The present paper, which focuses on general theory of law and procedure in the master program, aims to analise the right of defense within civil appellate system regarding appeals to interlocutory decisions and clarification requests. It starts with acknowledgement of the regulatory effectiveness of constitution and recognition of the fundamental rights in the civil procedure in order to achieve the constitutionalization of the civil procedure. As a result of this phenomena legislation started being interpreted according to the rules, principles and values original from the constitution. The right of defense, as a dialectical method and fundamental procedural right, recovers special importance in the decision making process. In order to change classic view, restricted to the bilateralism to be heard, the right of defense start to be understood in a new dimension that demands from the judge, allowing the parties to have a democratic and effective participation when defending their rights. This new dimension to the right of defense was considered essencial in this paper. Besides allowing the participation and influence of the parties on the course and the outcomes of the process, the essencial right of defense requires the decisions not to be surprising to the parties, even knowing that this requires the judge’s knowledge. The essencial right of defense is also analysed from its conection point of view and interection with the procedural principles of cooperation, good faith, bounds of the judge to fact of de case, iuria novit curia, rational persuasion and clarification requests. The knowledge of the matter receives form the right of defense guidelines that affirm the participation and influence of the parties on decisions made by the court. Finally, a case study about brasilian precedents was undertaken, aiming to verify the adherence to new dimension brought by the right of defense.