Mestrado em Direito Processual

URI Permanente para esta coleção

http://repositorio.ufes.br/handle/10/17546

Nível: Mestrado Acadêmico
Ano de início: 2006
Conceito atual na CAPES: 4
Ato normativo: Homologado pelo CNE (Port. MEC 946 de 29/11/2021). Publicado no DOU 30/11/2021, seç. 1, p. 63. Parecer CNE/CES nº 499/2017.
Periodicidade de seleção: Semestral
Área(s) de concentração: Justiça, Processo e Constituição
Url do curso: https://direito.ufes.br/pt-br/pos-graduacao/PPGDIR/detalhes-do-curso?id=1512

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A (im)penhorabilidade dos fundos partidário e eleitoral: interpretação do art. 833, XI, do CPC
(Universidade Federal do Espírito Santo, 2023-09-06) Moreira, Camila Batista; Siqueira, Thiago Ferreira; http://lattes.cnpq.br/1377110680976833; https://orcid.org/; http://lattes.cnpq.br/9770925004914823; Minami, Marcos Youji; Rodrigues, Marcelo Abelha; http://lattes.cnpq.br/9016704359432294; Jorge, Flavio Cheim; http://lattes.cnpq.br/9984015724596759
The proposed theme of the work aims to discuss the patrimonial responsibility of political parties in order to analyze the application, scope, relativization or flexibility of the non-seizability described in art. 833, item XI, of the Code of Civil Procedure (nonseizability of the party fund), especially after the creation of the electoral fund, which transformed mixed campaign financing in Brazil into predominantly public funding. The research seeks to answer the following questions: which values of the Parties can be the object of expropriation by creditors and interested parties who aim to receive debts? If the Parties do not have private funds, is it possible to make the party fund nonseizability more flexible? In which contexts? Should the special fund also be declared unseizable like the party fund? Through the deductive method of investigation, we seek to understand the peculiarities of the patrimonial responsibility of political parties. As a delimitation of the proposed theme, the main core of the research is the objective dimension of patrimonial responsibility, that is, it is limited to the analysis of which values can be expropriated. Therefore, the theme is approached in an evolutionary way and the dissertation was divided into three chapters. The first, in an introductory way, aims to address general concepts of electoral law, such as political parties, candidates, federations, coalitions, together with political financing in Brazil. The second chapter aims to study the general part of patrimonial responsibility and the regime of non-seizability. The third chapter deals specifically with the current context of party debts and the executions in which the parties are submitted, both in the scope of the Common Justice and in the scope of the Specialized Electoral Justice, specifically analyzing the non-seizability of party funds and electoral fund, in order to facilitate the receipt of amounts from political parties by creditors. Therefore, the area of concentration Process, Techniques and Protection of Existential and Patrimonial Rights of the Graduate Program in Procedural Law of the Federal University of Espírito Santo.
A (in)tangibilidade da coisa julgada perante decisão de inconstitucionalidade : uma análise do parágrafo 15 do artigo 525 do Código de Processo Civil
(Universidade Federal do Espírito Santo, 2017-06-02) Lyra, João Paulo Barbosa; Moussallem, Tárek Moysés; Jeveaux, Geovany Cardoso; Lins, Robson Maia
The main goal of this dissertation is to analyze the compatibility of paragraph 15 of Article 525 of the Code of Civil Procedure with the Brazilian Legal Order. From the theoretical model of logico-semantic constructivism, Law is understood as a set of rule of laws and cultural object constituent by its own realities by means of deontic speech act. To each production of legal norm there is a new legal system in a certain time. Legal security safeguards legal facts that occur in each of the legal system , ensuring the maintenance of the legal relationships created by Law. In order to protect the Federal Constitution, the constituent created forms of constitutionality control which will be proceeded either in a diffuse way, or in a concentrated way, not having hierarch between these two forms. From this perspective, the concept of res judicata is set from its normative structure as well as fundamental right guaranteed by the Federal Constitution of 1988. This theoretical and legislative panorama support the conclusion by the unconstitutionality of the provision in the Code of Civil Procedure of 2015.
A aplicação do direito processual penal na província do Espírito Santo (1830 a 1871) sob uma perspectiva de gênero
(Universidade Federal do Espírito Santo, 2025-05-13) Baptista, Gabriela Otoni; Campos, Adriana Pereira; https://orcid.org/0000-0002-2563-4021; http://lattes.cnpq.br/1013756650302841; https://orcid.org/0009-0005-7979-6850; http://lattes.cnpq.br/9260162940015971; Moschen, Valesca Raizer Borges; https://orcid.org/0000-0003-3974-8270; http://lattes.cnpq.br/0322058380590726; Mansur, João Paulo; https://orcid.org/0000-0002-5849-992X; http://lattes.cnpq.br/3453663305033129
This research analyzes the application of Criminal Procedure Law in the Province of Espírito Santo between 1830 and 1871, through a gender perspective. Digitized criminal case files available at the Public State Archive of Espírito Santo (APEES) were used as primary sources. These documents were selected based on the belief that they allow for a detailed analysis of cases involving women as either victims or defendants. The central objective was to understand the context in which the Criminal Code (1830) and the Code of Criminal Procedure (1832) were enacted and to examine the extent to which patriarchal social values may have influenced judicial decisions and the application of the norms established by these new legal instruments. Furthermore, the study sought to investigate whether, after a long period under the severe Portuguese Ordenações, there was room in 19th-century Brazil for legislation of a more liberal nature. To this end, it was analyzed how, in the midst of numerous innovations and changes during a period marked by legislative effervescence, criminal procedure law was shaped. The research revealed that the liberal enthusiasm surrounding the legal reforms introduced by the 19th-century codes — formally breaking with the rigidity of the Ordenações Filipinas and promoting procedural guarantees more aligned with social aspirations — was not enough to consolidate a true rupture with conservative social and moral values. Consequently, a reactionary movement soon prompted significant reforms to the procedural criminal framework. Within this context, gender inequalities also became evident, particularly in the lack of space afforded to women within criminal proceedings, the harsher moral judgment imposed upon them, and their subjugation in cases where they acted as perpetrators of violence. It is concluded that the history of women in the 19th-century Espírito Santo criminal justice system is a silent one, yet undeniably present—whether in the passive or active role within violent scenarios
A aplicação do forum non conveniens no ordenamento jurídico brasileiro no âmbito dos conflitos transnacionais
(Universidade Federal do Espírito Santo, 2022-04-08) Saar, Isabela de Araujo; Moschen, Valesca Raizer Borges; https://orcid.org/0000-0003-3974-8270; http://lattes.cnpq.br/0322058380590726; Rocha, Thiago Gonçalves Paluma; Gonçalves, Tiago Figueiredo; http://lattes.cnpq.br/5320780300394578; All, Paula Maria
The present work is the result of the contributions of the research group "International Law and the Labyrinth of the Codification of International Civil Procedural Law - CNPq", inserted in the concentration area "Justice, Process and Constitution" and in the research line "Process, Constitutionality and Guardianship of Existential and Patrimonial Rights” of the Master's Degree in Procedural Law at UFES. This research has as its central hypothesis the analysis of the application of forum non conveniens in transnational conflicts presented to the Brazilian State. Through the deductive method of investigation, we seek to understand the forum non conveniens as a mechanism that allows the judge, in a discretionary way, to decline his jurisdiction due to the existence of another more suitable forum for processing the demand. Sometimes, the use of the institute intends to avoid abuses of rights in the choice of forum for filing a lawsuit by the author. However, the application of the doctrine is also evaluated in cases where, in the absence of abusiveness, it appears that the action will be judged more effectively and adequately in another forum, either because of the existence of greater elements of connection with the case, or for the ease in obtaining evidence, hearing witnesses and/or complying with the sentence. With this, the foundations, concepts and purposes will be demonstrated, as well as the techniques adopted by comparative law for the use of the institute. The process of harmonizing Private International Law and the bilateral, regional and multilateral instruments on the subject are also studied, including the European conventions and the Hague Conference, including the proposal for a Convention on jurisdiction discussed in the Organization in the last decades, the ALI/UNIDROIT and ELI/UNIDROIT instruments, as well as the TRANSJUS principles of ASADIP. The bases of international jurisdiction and the limits of Brazilian jurisdiction will also be explored, followed by Brazilian jurisprudence on the subject. Finally, the principles that authorize the adoption of the institute will be addressed in transnational conflicts that are presented to the Brazilian State, such as due process, access to justice, adequate competence and procedural efficiency. In the end, the work proposes objective criteria for the application of the doctrine in Brazil.
A aplicação interativa de técnicas processuais para o adequado tratamento das situações de crise patrimonial: as interfaces entre o procedimento de recuperação judicial e o procedimento da lei do superendividamento
(Universidade Federal do Espírito Santo, 2023-08-25) Coser, Joana Vivacqua Leal Teixeira de Siqueira; Mazzei, Rodrigo Reis; https://orcid.org/0000-0003-0745-0461; http://lattes.cnpq.br/9840880011538012; https://orcid.org/0000-0002-3607-5050; http://lattes.cnpq.br/3824386984199583; Goncalves, Tiago Figueiredo; https://orcid.org/0000-0002-4064-3567; http://lattes.cnpq.br/5320780300394578; Santos, Thiago Rodovalho dos; https://orcid.org/0000-0002-5402-7335; http://lattes.cnpq.br/5142974418646979
This dissertation aimed to identify procedural techniques of judicial recovery procedures and the Over-indebtedness Law, and the interfaces between those special procedures, from the point of view of compatibility and efficiency. This object is closely linked to Justice, Process and Constitution PPGDIR’s concentration area and Process, Techniques and Protection of Existential and Patrimonial Rights line of research, insofar as the process is analyzed in the light of contemporary constitutionalism, based on the constitutional values and principles that guide it, in search of the realization of the protection of rights and scope of Justice. The starting point was the problem of the existing dichotomy between the systems of bankruptcy and judicial recovery of the company and the system of insolvency of the natural person, which was recently modified with the Law of Over-indebtedness, in order to find out if the interactive application of procedural techniques between the judicial recovery procedures and the Over-indebtedness Law is feasible, with a view to the adequate treatment of the debtor's asset crisis and the creation of a greater coherence system. The objective of the investigation was to demonstrate the possibility of transporting techniques between procedures aimed at reorganizing liabilities and restructuring the debtor, in a free transit, under the light of compatibility and efficiency. For that, it was based on the methodological rupture of the current civil procedural law, marked by procedural flexibility and atypicality that make possible the displacement and adaptation of procedural techniques. For the research, different legislations that institute systems of debt restructuring and debtor reorganization were analyzed, as well as systematized special techniques arranged therein, in order to finally identify techniques that could be exported or imported and applied interactively. It was concluded that it is not only viable, but also positive, the interactive application of procedural techniques between judicial recovery procedures and the Over-indebtedness Law, in a two-way street, regardless of the existence of regulatory gaps, as long as they are compatible and efficient, an interaction that can also take place in relation to other procedures that establish a creditor contest.
A arbitragem de litígios envolvendo entes públicos como tendência do processo civil contemporâneo
(Universidade Federal do Espírito Santo, 2011-05-13) Fernandes, Jeane Santos Bernardino; Moschen ,Valesca Raizer Borges; Rodrigues, Marcelo Abelha; Lemes, Selma Maria Ferreira
This essay opens up about the unpretentious attempt to tack marks doctrine and jurisprudence on the use of arbitration in domestic and international commercial contracts, aiming to operate a critical analysis of the weights that advocate the barriers to adoption of private methods of conflict resolution arising under state contract. Dissent befallen the spontaneous fulfillment of government contracts, it is imperative to help the resolution of the dispute mechanisms. Considering the crisis of credibility of the judiciary, delays in proceedings, and often, lack of understanding of the specificities and peculiarities of contracting this work dissertational promotes the defense of arbitration to the demarcation dispute had in the achievement of such contracts. It should proceed to investigate the views, trends and prospects of resolving conflicts in property contracts signed by state and parastatal entities nationally and internationally, giving rise to an analysis of vestibular problems extracted from there. The key point to be faced erects itself on the strength of traditional doctrine accepting the arbitration of domestic and international commercial arbitration for the intended scope, the ground affront to constitutional principles and attachments normative legal ruling. Aiming debug prints retrograde and unthinking assertions, it should be brought to light perception renewals and compliance internationalist issue for the debate on the national scene will conform to the current situation. The work goes through, respectively: a) the baseline concept of arbitration and the institutes of public procurement in its arrangements, b) analysis of the shortcomings of the judiciary as one of the reasons for the adoption of arbitration and the impact of new limits on the elimination of dissent in public procurement through non-judicial, treat, yet c) the failure plexus rules at national level as a cause enough to opt for alternatives to the current state interference in order to conclude by the powerless of arbitration; d) harmonization of laws you want, without necessary changes in the embargo regulations elementary developed so far. This thirst lauds the study of brief notes about some of the hotspots of choice for domestic arbitration and international commercial contracts in public, stressing the dissonance of doctrine and jurisprudence on the subject in focus.
A ata notarial e o processo
(Universidade Federal do Espírito Santo, 2013-05-24) Antar, Natália Bastos Bechepeche; Rabelo, Manoel Alves; Brandelli, Leonardo; Mazzei, Rodrigo Reis
A audiência de justificação nas ações possessórias: uma releitura da técnica de justificação prévia para a delimitação da participação do réu
(Universidade Federal do Espírito Santo, 2025-05-26) Simões, Eduardo Figueiredo; Silvestre, Gilberto Fachetti; https://orcid.org/0000-0003-3604-7348; http://lattes.cnpq.br/7148335865348409; https://orcid.org/0000-0003-0485-8365; http://lattes.cnpq.br/4588917736946889; Araújo, Fábio Caldas de; https://orcid.org/0000-0001-6496-5926; http://lattes.cnpq.br/8389006383308238; Gonçalves, Tiago Figueiredo; https://orcid.org/0000-0002-4064-3567; http://lattes.cnpq.br/5320780300394578; Mazzei, Rodrigo Reis; https://orcid.org/0000-0003-0745-0461; http://lattes.cnpq.br/9840880011538012
Subject: The justification hearing in possessory actions, particularly regarding the defendant’s participation. This study seeks, through a reinterpretation of the technique of “justificação previa” (preliminary justification), to examine the justification hearing in possessory actions considering the Article 562 of the Brazilian Code of Civil Procedure, in order to define the scope of the defendant’s role during the proceeding. Issue: The lack of uniformity in Brazilian legal literature and judicial practice concerning the limits of the defendant's participation in the justification hearing, a situation that undermines the proper application of the technique and, consequently, weakens the procedural protection of possession. Research Question: What are the limits of the defendant’s participation in the preliminary justification hearing conducted in possessory injunctions? Methodology: Documentary analysis of legal sources, including scholarly literature, domestic and foreign statutory provisions, and case law from several State Courts of Justice, the Superior Court of Justice, and the Federal Supreme Court. The study adopted a deductive approach, starting from generally accepted premises, related to specific ones, thus enabling the formulation of conclusions through descending logical reasoning. Results: The research demonstrates that, based on the analysis of the Fundamental Rules of Civil Procedure and the critical examination of the four main dogmatic theses regarding the defendant’s role (restrictive, moderate, permissive, and inverse), the defendant’s active – though limited – participation is compatible with the technique of preliminary justification and aligns with the fundamental procedural norms. Based on this finding, a three-phase model (for ordinary possessory actions) and a four-phase model (for collective possessory actions) are proposed for structuring the justification hearing. Contributions: This dissertation contributes to the improvement of the use of preliminary justification as a procedural technique by systematizing its structure and functioning. It proposes a procedural model for organizing the justification hearing, providing greater legal certainty to encourage its use – still sporadic in current judicial practice – and thus fostering a more efficient justice system, particularly in the procedural protection of possession.
A autodeterminação quilombola na suprema corte brasileira : uma análise do processo judicial da ação direta de inconstitucionalidade n.° 3.239
(Universidade Federal do Espírito Santo, 2018-05-03) Muniz, Lucas Pacif do Prado; Silva, Sandro José da; Pompeu, Júlio César; Vincenzi, Brunela Vieira de; Francischetto, Gilsilene Passon Picoretti; Ribeiro Júnior, Humberto
The objective is to describe the trajectory of institutionalization of the right of collective selfdetermination of quilombolas peoples in the Brazilian Law through the judicial process. The intention is demonstrate how this right foreseen in Convention n.º 169 of International Labor Organization, in force in Brazil, was seized by the agents of the legal field who acted in the process: on the one side as a right incompatible with the Constitution of 1988 and other internal legislation and, on the other side, as a legal resource capable of influencing the attribution of the normative sense of art. 68 of the Transitory Constitutional Provisions Act that provides for the territorial right of the remaining quilombo communities. The object of analysis that results in this dissertation is the direct action of unconstitutionality nº. 3.239 in ambit of the Federal Supreme Court, where the request is filed for the declaration of unconstitutionality of Decree n.º 4.887/2003, which establishes the procedures for identification, recognition, demarcation and titling of quilombos. It is a case study in which the electronic media of the judicial process were analyzed through the reading of legal pieces and visualization of the plenary sessions, with the recording and organization of the information obtained. The attention focus falls on the alleged material unconstitutionality of the contested decree, directly related to the right of self-determination of the remnants. During the study, it was found that the judicial process, for approximately 15 years, became an arena of symbolic struggles for the legitimate consecration of the conceptual definition of quilombo, an object opened since the resumption of debates, at the time promulgation of the 1988 Constitution, about which would be recipients of art. 68. There was a confrontation of two conceptual paradigms: one with a colonial basement established by the 1740 legislation and the other contemporary, elaborated by the Brazilian Anthropology Association in 1994. It was concluded that the Court legitimized the anthropological concept of quilombo and built the normative meaning of the right of self-determination of quilombola peoples, institutionalizing based in the elements self-definition, ethnicity and territoriality. With this, it established conditions for the effective access to territory to the remaining communities, as provided for in the 1988 Constitutional Charter.
A boa-fé objetiva no processo civil : a teoria dos modelos de Miguel Reale aplicada à jurisprudência brasileira contemporânea
(Universidade Federal do Espírito Santo, 2008-08-15) Santos, Leide Maria Gonçalves; Lima Neto, Francisco Vieira; Zaneti Júnior, Hermes; Vincenzi, Brunela Vieira de
Lo scopo principale di questo lavoro è quello di presentare la buona fede oggettiva come paradigma reggente dei rapporti intersoggettivi nel campo del Diritto Processuale Civile dimostrando il superamento dell’ applicazione rigorosa delle tecniche processuali dall’influso dei valori sociali, politici e culturali. La nuova sfumatura impressa dalla buona fede oggettiva nel campo del Diritto Processuale Civile stabilisce un modello oggettivo di condotta sociale segnato dalla lealtà e dalla probità che impera come standard giuridico per tutti coloro che partecipano del rapporto giuridico processuale. Le garanzie costituzionali processuali, espressione dello Stato Democratico di Diritto, sono ottimizzate attraverso le regole stabilite dalla buona fede oggettiva come norme che regolano la dialetticità del contraddittorio segnato dalla cooperazione leale e proba. La buona fede oggettiva, come causola generale effettivata nell’art. 14, inciso II del Codice di procedura civile, irradisce il suo costrutto in tutti gli espettri del Processo civile attraverso i modelli giuridici costruiti dalla giurisprudenza con l’uso della Topica, portando un nuovo raggio di luce per il raggiungimento dell’effettività della prestazione della tutela giurisdizionale.
A cláusula de eleição de foro nos contratos internacionais de transferência de tecnologia envolvendo patentes : limites da jurisdição internacional
(Universidade Federal do Espírito Santo, 2012-06-01) Vasconcellos, Júlia Fiorin de; Moschen, Valesca Raizer Borges; Jeveuax, Geovany Cardoso; Jimenez, Martha Lucía Olivar
It is not recent the increase in international trading, and it is also not recent that technological development and intellectual property have been receiving a prominent place as the true feature differentiating countries and companies. Such international context justifies the analysis of choice-of-court clauses in international industrial property agreement, specifically the clauses indication the competent jurisdiction to hear inevitable disputes. This thesis aims to examine the jurisdiction clauses in the international technology transfer agreements involving patents, due to the uncertainty that arises from this theme, and also the few studies written in Brazil and overseas regarding the subject. It has been identified that industrial property generates innumerous doubts when considering public policies and national sovereignty, particularly because they have to be registered with the competent authorities of each States, and because there is usually an invalidity claim related with such cases. To this end, an outline was established for nonexclusive competence in the Brazilian’s legal system, and its main repercussions in the national jurisprudence, primarily to analyze the compatibility of the choice-of-court clauses in international technology transfer agreements involving patents with the current and expected to be future Brazilian Civil Procedure Code. Registration, validity and contractual infringement issues were raised, together with the solutions proposed by the Hague Convention of June 30, 2005 on Choice of Court Agreements, as they may be incorporated to the Brazilian legal system to respond more objectively to the issues relating to jurisdiction choices
A coisa julgada e os seus limites objetivos no Código de Processo Civil de 2015
(Universidade Federal do Espírito Santo, 2016-06-20) Gama, João Felipe Calmon Nogueira da; Jorge, Flávio Cheim; Moussallem, Tárek Moysés; Brasil Junior, Samuel Meira
A coisa julgada no código de processo civil de 2015 : premissas, conceitos, momento de formação e suportes fáticos
(Universidade Federal do Espírito Santo, 2016-06-30) Senra, Alexandre; Mazzei, Rodrigo Reis; Mourão, Luiz Eduardo Ribeiro; Nogueira, Pedro Henrique Pedrosa
The research deals with the res judicata in the Civil Procedure Code of 2015 (CPC/15), from a normative perspective. It is divided basically into two parts. In the first part, are exposed the author's premises. The legal phenomenon is examined, according the theory of legal fact, in the level of general theory of law. The language of positive law is differentiated from the language of science of law, based on three criteria: hierarchy, type and function. Words, concepts and definitions are distinguished from each other and articulated. The second part develops the theme (res judicata). After examining the main concepts of res judicata developted and used by the doctrine and making a first confrontation between them and the CPC/15, the concepts of res judicata that the author considers useful to the understanding of the matter, as regulated by CPC/15, as designed and defined. Then, the attention is turned to the Constitution, so that the constitutional limits for the legislative activity on the subject are verified, prior to a deeper examination of the rules inside the CPC/15. After that, it analyzes the initial moment of res judicata in various situations. Finally, the longest chapter examines the types of legal facts that produce the legal effect res judicata. They are analyzed from three categories, which the author calls: "res judicata on main issues", "res judicata on procedural matters" and "res judicata on incidental prejudicial questions."
A competência dos tribunais de contas para a concessão de medidas de natureza provisória : uma reflexão sobre seus limites
(Universidade Federal do Espírito Santo, 2017-06-14) Franco, Elisangela Fabres; Jorge, Flávio Cheim; Rabelo, Manoel Alves; Pedra, Anderson Sant’Ana
In the Brazilian constitutional system, the Court of Auditors performs the duties of control of direct and indirect public administration. From an analysis of the constitutional text in the light of its fundamental principles and of the republican democratic institutional context, this work examines the extent of control exercised by the Courts of Auditors in Brazil, in a scenario where the search for efficiency in the public officials' conduct is a constitutional requirement. In exercising its constitutionally provided competence, the Court may, for example, impose penalties on managers, determine the return of values to the Treasury, declare the unsuitability to contract with public administration, and, in the course of all processes under its jurisdiction, the Court may also issue provisional measures, acting preventively for avoiding potential damage. The investigation of the legal nature of these provisional measures embody the objective of this work, developed from the deductivecomparative method.
A comunicação direta na subtração internacional de menores: desafios de sua implementação no sistema processual brasileiro
(Universidade Federal do Espírito Santo, 2025-05-19) Dondone, Isabela Tonon da Costa; Moschen, Valesca Raizer Borges; https://orcid.org/0000-0003-3974-8270; http://lattes.cnpq.br/0322058380590726; https://orcid.org/0000-0002-7574-6128; http://lattes.cnpq.br/7390956730691966; Campos, Adriana Pereira; https://orcid.org/0000-0002-2563-4021; http://lattes.cnpq.br/1013756650302841; All, Paula Maria; https://orcid.org/0009-0005-2166-4257
The purpose of this dissertation is to analyze the implementation of direct communication in international child abduction matters in the Brazilian procedural legal system. Given the various procedural issues in the framework of the 1980 Hague Convention on the Civil Aspects of International Child Abduction and its procedure based on speed and the principle of the best interests of the child, the aim is to answer how the procedural regulatory deficiency impacts or not on the application of Direct Judicial Communication. Therefore, the methodology adopted is deductive-inductive, using bibliographical, jurisprudential and documentary research and, in addition, using two qualitative data collection techniques: forms and interviews. The work is divided into two stages: the first, reflected in the first two chapters, provides a literature review on the subject, developing the foundations of International Legal Cooperation in the Brazilian legal system, as well as studying the International Abduction of Minors and its main procedural issues and, finally, analyzing the use of direct communication. The second part, in the meanwhile, is made up of the collection of a form sent to Brazilian liaison judges, as well as interviews with representatives of the Regional Secretariat for Latin America and the Caribbean of the Hague Conference, and the identification of the main consequences generated by the regulatory deficiency. The research is part of the Justice, Process and Constitution concentration area and the Justice, Constitutionality and Protection of Individual and Collective Rights research line. This dissertation was developed through participation in the Labyrinth of International Civil Procedure Codification Research Group (LABCODEX).
A cooperação no CPC-2015 : colaboração, comparticipação ou cooperação para o processo?
(Universidade Federal do Espírito Santo, 2018-04-27) Pimenta, Henrique de Souza; Madureira, Claudio Penedo; Zaneti Junior, Hermes; Cabral, Trícia Navarro Xavier
The research is dedicated to the subject of procedural cooperation, in order to examine which procedural subjects are bound by cooperative duties from the cooperative process model inaugurated by the Procedure Civil Code of 2015. It identifies, from a historical perspective, the existence of three models of procedural organization: adversarial, inquisitorial and cooperative. The adversarial model is related to the Liberal State and its central characteristics are the protagonism of the parties in the conduct of the process and the relatively passive position of the judge during the procedural. The inquisitorial model corresponds to the Social State and is marked by the presence of the judge as the main character of the process with a view to finding the "real truth". From its turn, the cooperative model is compatible with the Constitutional Democratic State and organizes the process around a "work community", in which all the procedural subjects contribute, from a dialogic environment, to the formation of the decision of judicial process of fair, timely and effective merit. It notes that the cooperative model find its foundation from the principle of cooperation, which is understood as a principle endowed with normativity to impose a state of affairs, so that, all conduct contrary to the promotion of a cooperative process environment will be considered illegal. It notes that cooperative duties derive from the principle of good faith and imply cooperative behavior for all procedural subjects. It states that the objective of the contemporary process is to safeguard rights in a fair, adequate, timely and compatible manner to fundamental rights, so that all procedural subjects, without exception, must observe cooperative duties. It verifies that cooperative duties are linked to the counterfactual function of the legal phenomenon, so that counterintuitive behaviors will be imposed on procedural subjects, so that all procedural subjects cooperate for the process. It notes that non-compliance with cooperative duties generates sanctions expressly established by law, as well as having the potential to entail a number of procedural disadvantages, such as a default judgment, the preclusion of untimely arguments, a judgment of merit on the grounds of insufficiency of evidence.
A cooperação no CPC-2015: colaboração, comparticipação ou cooperação para o processo?
(Universidade Federal do Espírito Santo, 2018-04-27) Pimenta, Henrique de Souza; Madureira, Claudio Penedo; https://orcid.org/0000-0003-0283-2882; http://lattes.cnpq.br/4199732799442853; https://orcid.org/; http://lattes.cnpq.br/3426484651427204; Zaneti Junior, Hermes; https://orcid.org/0000-0001-6461-6742; http://lattes.cnpq.br/5343355826023519; Cabral, Trícia Navarro Xavier; https://orcid.org/0000-0002-0302-2972; http://lattes.cnpq.br/9520025926109431
The research is dedicated to the subject of procedural cooperation, in order to examine which procedural subjects are bound by cooperative duties from the cooperative process model inaugurated by the Procedure Civil Code of 2015. It identifies, from a historical perspective, the existence of three models of procedural organization: adversarial, inquisitorial and cooperative. The adversarial model is related to the Liberal State and its central characteristics are the protagonism of the parties in the conduct of the process and the relatively passive position of the judge during the procedural. The inquisitorial model corresponds to the Social State and is marked by the presence of the judge as the main character of the process with a view to finding the "real truth". From its turn, the cooperative model is compatible with the Constitutional Democratic State and organizes the process around a "work community", in which all the procedural subjects contribute, from a dialogic environment, to the formation of the decision of judicial process of fair, timely and effective merit. It notes that the cooperative model find its foundation from the principle of cooperation, which is understood as a principle endowed with normativity to impose a state of affairs, so that, all conduct contrary to the promotion of a cooperative process environment will be considered illegal. It notes that cooperative duties derive from the principle of good faith and imply cooperative behavior for all procedural subjects. It states that the objective of the contemporary process is to safeguard rights in a fair, adequate, timely and compatible manner to fundamental rights, so that all procedural subjects, without exception, must observe cooperative duties. It verifies that cooperative duties are linked to the counterfactual function of the legal phenomenon, so that counterintuitive behaviors will be imposed on procedural subjects, so that all procedural subjects cooperate for the process. It notes that non-compliance with cooperative duties generates sanctions expressly established by law, as well as having the potential to entail a number of procedural disadvantages, such as a default judgment, the preclusion of untimely arguments, a judgment of merit on the grounds of insufficiency of evidence.
A devida negociação criminal : técnicas procedimentais adequadas da justiça penal negociada
(Universidade Federal do Espírito Santo, 2024-05-28) Ferreira, Tiago Loss; Dias, Ricardo Gueiros Bernardes ; https://orcid.org/0000-0003-1917-5284; http://lattes.cnpq.br/7071302456614853; https://orcid.org/0000-0003-1566-9869; http://lattes.cnpq.br/0731528987176134; Suxberger, Antonio Henrique Graciano ; https://orcid.org/0000-0003-1644-7301; http://lattes.cnpq.br/9136957784681802; Freire Júnior, Américo Bedê ; https://orcid.org/0000-0003-0128-8790; http://lattes.cnpq.br/0136827472164962; Silvestre, Gilberto Fachetti ; https://orcid.org/0000-0003-3604-7348; http://lattes.cnpq.br/7148335865348409
The adoption of consensus techniques in Brazilian criminal law presents itself as a preventive and remedial measure in the face of the overload of criminal cases brought to the Court for analysis, and its consequent inability to resolve in a timely manner the high number of accusations that are presented to it on a daily basis. Faced with this scenario, it is observed, mainly from the American legal experience, that encouraging the use of agreements to resolve criminal cases can be an effective means of enabling the delivery of timely criminal protection. Thus, enthusiasm is established towards criminal negotiation and its proposal for rapid conflict resolution. It turns out that such an impulse should not override the content of due process of law, since, by virtue of an express constitutional provision, all processes taking place in Brazilian territory must comply with the dictates of fair process. There is no valid, perhaps fair, process that violates reasonableness and adequacy. In this sense, this research proposes to make the ideals of fair process compatible with criminal negotiation to build a new concept in the Brazilian legal system: due criminal negotiation. Added to this is the exploration of its content, namely: legislative authorization to negotiate; respect for express criminal constitutional guarantees; existence of just cause to start negotiations; voluntariness in the development of negotiations and monitoring by technical defense; and the role of the magistrate in approving and executing agreements. To this end, methodologically, a critical analysis of specialized national and American legal literature is undertaken, an assessment of the scope and limits of Brazilian consensus instruments (civil composition of damages; criminal transaction; non criminal prosecution agreement; conditional suspension of the process ; and award-winning collaboration) and North Americans (plea bargaining and its consequences) and the comparison of paradigmatic judgments, with the aim of constructing the content of fair criminal negotiation. In this scenario, the following problem was fixed: what is proper criminal negotiation and what are its appropriate procedural rites. Therefore, in addition to the theoretical approach, this work – attentive to the legislative shortage – aims to assist the daily forensic work of magistrates, prosecutors, attorneys and public defenders who are faced with the possibility of resolving criminal cases through consensus, but are prevented from signing agreements due to procedural difficulties that permeate the modus operandi to be adopted in criminal negotiation (time for execution; permitted conditions; participation of the judge; possibility of subsequent review of the agreed terms; challenge the refusal to offer by sending the records to the reviewing ministerial body; possibility of application in cases of agent competition; etc.). Thus, the present work aims to establish the conceptual contours of fair negotiation and present procedural techniques suitable for its daily use
A dificuldade na superação de precedentes em razão da restrição de admissibilidade prevista pelo art. 1.030 do CPC/15 com a redação dada pela Lei 13.256/2016
(Universidade Federal do Espírito Santo, 2025-05-27) Giuberti, Douglas Puziol; Jeveaux, Geovany Cardoso ; https://orcid.org/0000-0003-1835-6737; http://lattes.cnpq.br/0864752123654928; https://orcid.org/0009-0000-1305-8816; http://lattes.cnpq.br/0152170292981614; Dias, Ricardo Gueiros Bernardes ; https://orcid.org/0000-0003-1917-5284; http://lattes.cnpq.br/7071302456614853; Freire Júnior, Américo Bedê ; https://orcid.org/0000-0003-0128-8790; http://lattes.cnpq.br/0136827472164962
This master dissertation examines the difficulty of overcoming binding precedents within the Brazilian legal system due to the restriction imposed by Article 1.030 of the Code of Civil Procedure of 2015, as amended by Law No. 13.256/2016. The research begins with a comparative analysis between the classical doctrine of stare decisis, characteristic of common law countries, and the normative precedent model adopted by the 2015 CPC. It then explores the tension between jurisprudential stability and flexibility, the possible dynamics of precedent overruling (and its variations), and the theoretical grounds that justify such revision. The core focus lies in the procedural barrier created by the denial of follow-up by local courts to extraordinary appeals that challenge binding precedents, as well as in the procedural limits and strategies available to litigants to trigger the revision of the applied thesis, thus enabling access to the superior courts and the reopening of the legal debate surrounding the precedent. The study questions whether this model of admissibility is compatible with the integrity of a precedent-based system and with the principles of legal certainty, protection of legitimate expectations, and access to justice—especially in light of the constitutional jurisdiction conferred upon the Federal Supreme Court and the Superior Court of Justice to ensure the uniform interpretation of constitutional and infraconstitutional law in Brazil
A distribuição dinâmica do ônus da prova em matéria tributária
(Universidade Federal do Espírito Santo, 2019-06-19) Sartório Junior, Roberto; Moussallem, Tárek Moysés; Zaneti Júnior, Hermes; Brasil Júnior, Samuel Meira
The purpose of this dissertation is to identify the applicability of the dynamic distribution of the burden of proof in tax lawsuits, especially regarding issues involving third party tax liability. This technique aims to seek the effectiveness of judicial protection with the scope of inhibiting the production of proof impossible by a party when the burden of proof falls on the adverse party that has better conditions to produce it. This will reflect, above all, on issues involving evidence of negative facts and assumptions. In this sense, to investigate the use of this technique, the paper will deal with the evaluation of evidence by the judge, in addition to the fundamental norms of the Code of Civil Procedure that support the use of dynamic distribution for the construction of truth in the process, given the contradictory and cooperation. Parallel to this, there will be an examination of the rules of presumption and of tax liability in order to demonstrate the need for the production of evidence by the Treasury to confirm the tax legal fact, besides highlighting the importance of the prior contradictory to support the redirection of tax execution. Therefore, it is verified that absent one of these factors, the dynamic distribution of the burden of proof should be applied in the tax process.

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