Negócios jurídicos processuais sobre o direito fundamental ao contraditório

Abstract

The Brazilian Constitution of 1988 sets a group of fundamental rights regarding judicial procedures, all of which are part of a framework known as “due process of law.” These norms represent a basis of legitimacy for the State to exercise its jurisdictional powers. As a result of the current Code of Civil Procedures (as amended in 2015), an innovative rule granting leeway to negotiate of certain procedural matters has been enacted, with that, parties now agree on some of their procedural onus, powers and duties. Since the ability to negotiate certain procedural rights and duties represents new grounds within our legal system, we must examine whether the fundamental rights regarding judicial proceedings set forth by the Constitution can be subjected of transactions by parties, especially in light of the theory of non-renounceable rights. Here is no uniform answer as to whether all the fundamental procedural rights can be renounced or not, calling, therefore, for an individual analysis of each of them. The goal of this master’s thesis is to investigate which fundamental rights can be subject of withdrawal, by analyzing the precepts underlying each norm. We also aim establishing boundaries to the procedural agreements based on the fundamental procedural rights, while also indicating which legal regime is applicable when parties decide to transact on procedural matters.