Conciliação e acesso à justiça: aplicação do CPC/2015 à luz da teoria dos direitos fundamentais

• Ano de defesa: 2019
• Autor(a) principal: Bastos, Marília Pereira de Abreu
• Tipo de documento: Dissertação
• Tipo de acesso: Acesso aberto
• Idioma: por
• Instituição de defesa: Faculdade de Direito de Vitoria; Brasil; Departamento 1; PPG1; FDV
• Palavras-chave em Português: Acesso à justiça; Meios consensuais de solução de conflitos; Conciliação; Cultura da pacificação; Direito como integridade; CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO
• Link de acesso: http://191.252.194.60:8080/handle/fdv/1213

The present dissertation, developed under the hypothetical-deductive method, proposes to solve the following research problem: considering the relative limits arising from the current structure of the Brazilian justice system, which has been, in practice, unable to structure an apparatus capable of In order to fulfill the requirements imposed by Articles 3 and 3 and 334 of CPC / 2015, which makes the conciliation hearing compulsory, the question arises, with a view to non-violation of the fundamental right of its effective access to justice, if the article is repealed or the postponement of its application is presented as a necessary condition to prevent the violation of rights due to the risks inherent to the hearing held by the judge, or its non-performance as provided for in the ECJ Report, or to its being held by an intern. To formulate a scientifically adequate answer, the dissertation is divided into three chapters. The first discusses the relationship that is established between: the meaning of the fundamental right of access to justice; the concept of justice; the normative change brought about by the insertion, in CPC / 2015, of the institute of compulsory conciliation hearing before the contestation and; Ronald Dworkin's theory of law as integrity. The second chapter presents the question of conciliation as a means of access to justice - the theoretical framework used to analyze it - the teachings of Mauro Cappelletti and Bryant Garth and Ronald Dworkin's theory of law as integrity - and the perspective of access to justice, based on the normative change identified with the 2015 Civil Procedure Code, which proposes a stimulus to conciliation through a National Policy for the Proper Resolution of Conflicts of Interest within the Judiciary. In the third, we face this new perspective of access to justice, adopting the understanding that the attempt at conciliation is an obligation imposed by the law, which makes up the institute, and that conciliation is part of a larger public policy that It proposes to stimulate citizens' autonomy and to reduce excessive litigation, being able to make access to justice truly effective. The discussion raised in these three chapters allows us to identify the existence of an ongoing normative transition. Thus, from all the previous discussion and synthesis of the dissertation are developed: the critical study that the access to justice is not absolute and suffers limitations resulting from the constitutional text itself and also the infraconstitutional, beyond the budgetary and structural limits; the innovation brought by the norm that determines the obligation of the previous attempt to reconcile as one of these restrictions to the exercise of access to justice; and, finally, the synthesis, which reveals the final answer, is that the imposition on the author to try to reconcile before starting a process composes the understanding of access to justice, even from a constitutional perspective, and has ability to reinforce its implementation, despite budgetary and structural difficulties in implementing the appropriate resolution policy for conflicts of interest within the judiciary