Autonomia e diferenciação do processo judicial: análise da sentença de primeiro grau no processo judicial ação penal nº 5046512-94.2016.4.04.7000/PR a partir da teoria sociológica do direito de Niklas Luhmann.

• Ano de defesa: 2020
• Autor(a) principal: Costa, Marcos Gonçalves Nascimento
• Tipo de documento: Tese
• Tipo de acesso: Acesso aberto
• Idioma: por
• Instituição de defesa: Universidade Federal da Paraíba; Brasil; Ciências Jurídicas; Programa de Pós-Graduação em Ciências Jurídicas; UFPB
• Palavras-chave em Português: Procedimento judicial; Teoria sociológica do direito; Autonomia; Law; Sociológical theory; Legal proceedings; Autonomy; Recht; Soziologische theorie; Rechtsverfahren; Autonomie; CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO
• Link de acesso: https://repositorio.ufpb.br/jspui/handle/123456789/20936

The present paper is an analysis of the formation of autonomous social systems in legal proceedings. According to the theory of Luhmann, the autonomous character is caused by structures inherent to procedural dogmatics, which will be firstly defined and then analysed by being applied through a case study of the the process referred to as AÇÃO PENAL Nº 5046512-94.2016.4.04.7000/PR. It is intended to identify those structures, that contribute to the formation of an autonomous social system within dogmatic processes. For this purpose, the present research presupposes that the relationship between a complex society, positivized law and the proceedings is analysed as determining for the comprehension of the decision taking techniques and the execution of law. Following the proposed theoretical foundation, it is admitted that law performs a specific function, namely that of supplying a congruent orientation in the course of meaning creating processes, by setting normative expectations confirmed in a counterfactual way. The present paper considers the function of establishing a congruency among the temporal, social and material realms of meaning as being implemented via júridical decisions and therefore, the congruency will be confronted with the constructions of a dogmatic process on basis of the aforementioned júridical decision. By this means, the construction of the social system will be traced through the process, being analysed as an autonomous system of communication towards the general system of society, which constitutes the environment of the law system. In order to investigate the research proposal and following the aforesaid foundation, the following initial question will be posed: what structures collaborate with the formation of an autonomous social system, a social system of communication with its own time, that differs from social time; with specific social roles, that differ from social roles broadly performed in society; and a specific matter, reality, selected by the dogmatic process? The hypothesis of this work is hence indicating the existence of autonomous social systems, specifically law based, as being formed in legal proceedings. A sociológical theory is taken to provide the means needed in order to comprehend this autonomous formation and thus to allow for identification of those structures that, through the dogmatic technique of decision production in the judicial process, form this autonomy. The research was conducted through an analytic functional methodology. The work is divided in six chapters, of which the first consists in a presentation of the sociológical theory and the second focusses on the function of law, according to this theory. Subsequently, the third and fourth chapter supply analyses of the proceedings as special social systems and as meaning producing system, respectively, followed by the presentation of those aspects of analytic rhetoric, relevant to this research. In chapter six, the theoretical aspects and intermediate results are applied to the aforementioned case, illustrating the taking place of the described processes by concrete examples. This paper draws a conclusion in favour of the existence of autonomy in júridical proceedings before the social system in a broader sense, in the temporal as well as in the material and social realms and accounts for this phenomena by pointing out certain structures of dogmatic processes, such as preclusion, the impartiality of the judge, the creation of a specific history in the proceedings and the matters, legal facts, selected in order to substantiate the decision. Finally, it is given an outlook for further research proposals on the matter.