Detalhes bibliográficos
| Ano de defesa: |
2023 |
| Autor(a) principal: |
Passoni, Marcos Paulo
 |
| Orientador(a): |
Nery Junior, Nelson
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| Banca de defesa: |
Não Informado pela instituição |
| Tipo de documento: |
Tese
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| Tipo de acesso: |
Acesso aberto |
| Idioma: |
por |
| Instituição de defesa: |
Pontifícia Universidade Católica de São Paulo
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| Programa de Pós-Graduação: |
Programa de Estudos Pós-Graduados em Direito
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| Departamento: |
Faculdade de Direito
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| País: |
Brasil
|
| Palavras-chave em Português: |
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| Palavras-chave em Inglês: |
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| Área do conhecimento CNPq: |
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| Link de acesso: |
https://repositorio.pucsp.br/jspui/handle/handle/40829
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Resumo: |
This work examines the social universe and its problematic relationship with the legal field. The contemporary society that is highly digital, complex, dynamic and possesses extensive information produces situations that are actually agitated and have a high degree of permanence, giving rise to recent problems and apparently recent problems. It was found that situations of law and consolidated fact called for a technical procedure suited to the specific needs of their solution and removal from the field of litigation. The work also included an in-depth study of the structural problem, the consolidated state of affairs from the angle of lawfulness, material and procedural law, collective and individual law. It was found that the structural problem must be raised from the initial permanent state of affairs to the final state of affairs in accordance with the Law established by the national legal system (and does not conform to an unenforceable, unattainable and inglorious ideal world), as well as it was discovered that the structural problem is broader than the consolidated state of affairs deduced in the initial petition. The consolidated state of affairs involves, for example, pollution caused permanently by a company, the degrading and permanent situation of Brazilian prisons, a permanent lack of places in daycare centers or physical or motor inaccessibility to public or private institutions. The structural problem has an environmental, political, economic, cultural, social and legal scope, as well as characteristics of transience, need for fragmentation, consensuality, cooperation, flexibility, self-regulation, escalation and legislative, executive and civil society dependence in particular. The work also developed a study on the structural process: its fundamental premises such as the application of Brazilian positive law; the structural process must have an end and not become ad eternum; it was concluded that there is only a structural process in the face of the unequivocal factual existence of the structural problem and that the structural process is not limited to the application of public policy or the collective process; it was concluded that the structural process is not a material autonomous branch of Procedural Law, but an autonomous procedural branch of Procedural Law, just as the structural process does not have as its essential and typical characteristic consensuality, flexibility, two-phase procedure, complexity, multipolarity or collectivity or fundamental right, a circumstance that reinforces the conclusion that the structural process is procedurally autonomous in view of Procedural Law. There are authentic and inauthentic structural processes depending on the greater or lesser potential for solving the existing structural problem associated with this process. It was researched and concluded that there is an inverse relationship between the institute of the structural process and the institute of the Special Civil Court. This work investigated the relationship between the principle of principles, due legal process, and the structural model. A study was developed on the link between the study of the structural process and judicial activism, Democracy and the General Theory of Law. The work established a conceptualization of the structural problem and the structural process, central themes of this study. And he noted the existence of specific principles and rules specific to the structural process, such as the principle of human dignity, due structural legal process, the virtuous effectiveness of friendly time, the instruction of the unknown, the appropriate means to achieve ends , budgetary balance, structural institutional dialogue and cooperation, the virtuous effectiveness of measured formalism, among others.The work, in addition, faced in a vertical way the issue linked to the judicialization of public policy and the relationship between the structural model and the arbitration process. And, in the end, he criticized the institute of the structural process in light of the Constitutional model in force in the country, as this instrument must be seen positively, but not as something that resolves all national legal ills: due legal process must prevail |
