Os poderes instrutórios do juiz no direito processual civil brasileiro à luz dos direitos fundamentais à segurança jurídica e à tutela jurisdicional efetiva

Abstract

With the advent of 1988 Federal Constitution, Brazil expressly adopted the Constitutional State of Democratic Law, in which the achievements of the Constitutional State of Separation of Powers (Liberal Constitutional State) and of Social Constitutional State (Welfare State) wereincorporated. In the Democratic State of Law, the function of jurisdiction is the rights protection, being the reason why the judge has a more active role in the procedural relationship, sometimes endowed with different powers, especiallywith instructional powers. In this context, the judge is a state agent who has the responsibility to accomplish all generations of directly associated with the work division of the parties in the process, since it generates tension between two great values of civil procedure, the value of effectiveness and the value of security. Thus, if on the one hand the judge has the duty to provide an effective judicial protection, on the other hand, the parties have the right to have a fair process in which their fundamental procedural rights, especially the ones which are related to judicial security, are respected against arbitrary exercise of power. Instructional powers are related to a procedural technique whichnables the judge to provide an effective judicial protection, through a decision based on in adequate analysis of the facts. However, the instructional powers need dogmatic contours, that is, criteria for their exercise, so as they do not represent state discretion, which is the purpose of this study. Through this research, establishing criteria in the light of the fundamental right to effective judicial protection and in the light of the fundamental right to legal security is the aim to be achieved so as to ensure the legitimate exercise of the instructional powers.