O pedido de suspensão de segurança: uma análise do procedimento na perspectiva do princípio do contraditório

Abstract

This work aims to carry out a critical analysis of the procedure of the request to suspend the effectiveness of a decision contrary to the Public Power, specifically under the focus of the adversarial principle, established in art. 5th, inc. LV, of the Federal Constitution. Created to make up for the inexistence of an appeal with suspensive effect in view of the preliminary injunction and the granting or denying security sentence, the security suspension was subject to normative expansion, to the point of being applicable in the face of any jurisdictional provision contrary to the Public Power. With an eminently jurisdictional nature, the institute is regulated by a conglomerate of scattered laws, which, based on modern doctrine, should be seen as a legal and procedural microsystem on the subject. In another turn, based on a study of the historicity of the contradictory principle, we arrived at its more modern concept. With a collaborative model, or rather, co-participation, the civil process manages to bring to the adversary a much more substantial content, in which the parties are given the rights to influence the court decision and not be taken by surprise with decisions whose matters were not taken to the previous debate. With this theoretical framework, the research sought to identify which points the microsystem's laws are lacking or apparently contrary to the principle and what would be the ideal procedure in view of such content. As a result, there were legal gaps, unconstitutional interpretations and jurisprudential positions that, a priori, would not be in line with such principle. Thus, suggestions for procedural measures were presented, as well as reflections on the need for legislative change.