O poder geral de efetivação em face de terceiros e o direito ao contraditório

Abstract

It is possible to extract from the Brazilian procedural system the authorization for the application of executive measures against nonparties, intelligence arising from the duties attributed to all indiscriminately, the subject to the effects of the decision and the general power of effectiveness structured in CPC/15. This reality was gradually developed and found ample space with the legislative reform of 2015, precisely because of the structure offered by the system in relation to the wide powers available to the judge to carry out his determinations, especially through the valorization of executive atypicality, aiming at the purposes of the fundamental right to an effective process, a corollary of access to justice protected by the Constitution. On the other hand, in view of this authorizing presupposition, it is emphasized that no one can have their legal sphere impaired or affected without due process of law, which includes, above all, the right to participate in adversarial proceedings, protection provided by the Constitution, an elementary aspect for the analysis of the imposition of executive measures to the detriment of nonparties who, in theory, did not participate in adversarial proceedings in the the original procedural relationship. Indeed, about the counterpoint between the general power of effectiveness against nonparties and the right to the adversary system, questions regarding the extent of the nonparties interest, the procedural aspects of the exercise of the adversary system, the decision-making grounds and the judicial remedies are essential, so that the jurisdiction is effective without, however, losing sight of the fundamental right to the adversary system. Thus, the present study, through the deductive method of research, with bibliographic and jurisprudential exploration on the subject and its nuances, with a focus on the perspective of civil procedural law in the light of constitutionalism and fundamental rights, seek to offer points of reflection and the perspective of compatibility between the breadth of power and the strengthening of due process of law.