O dever de cooperação no direito processual civil: propostas para a promoção de sua eficácia e efetividade

Abstract

The conformation model of the Law – and, thus, of the Procedural Law– holds direct relation with the conformation model of the State and society. After the second post-war, specially, relating itself with the main scope of transforming reality, that is, of transforming the status quo, and in the democratic ideal, alongside the evolution to the Liberal Rule of Law and the Social Law State, a new model of state organization is developed, which is, the State of Democratic Law. The Brazilian Constitution of 1988, our major law, elects, expressively, in the caput of its article n.1, this new model as a paradigm to be followed. In regards to the society ideal, the Constitution incorporates the social solidarity as an objective of the Republic (article n.3, I – norma-fim), in frank harmony with the passage of the modern thought to the contemporary thought. Indeed, since the beginning of the XX century, the solidarity doctrine is increasing even more, which creates basis for the construction of a solidary, cooperative society, in what, mostly, has to do with economic and juridical aspects. In the same line, it is to say, in harmony with the irrefutable social transformations, the Civic Procedural Law, cultural product of its time, passed through, in the last decades, a reconstruction of its technical contributions. In our country, the greatest symbol of this change of path is reflected on the Procedural Civic Code of 2015 (PCC of 2015), that affirmed, in its article n.6, the principle of cooperation, beginning a new way of structuring the process, called by the qualified doctrine of procedural cooperative model. It is a model which aims, in the light of the pluralist democracy, to balance the division of work between the procedural subjects, without protagonism of the judge and nor of the parts in the procedural iter. Therefore, in the cooperative or produre-shared management, it is given a new dimension to the role of the judge and the parts. Moreover, while following rule of conduct, the cooperation generates a series of duties to the procedural subjects. It occurs that in the article n.6 of the PCC/2015 – and, in general, Law as a whole does not expresses the nature of the being. Traditionally, the Brazilian judge, in the conduct of the process, does not put themselves in the same plane of the parts. On the other hand, the adjudicated and their attorneys still guides themselves, largely, by the outdated culture of litigation, which handles the procedure in an overly limited vision and pessimistic in regards to reality, as a “quarrel”, a “ruffle”, a “free-for-all”. Assured of the necessity of a thematic court against the innumerable nuances of the cooperation, we investigate the effectivity of the cooperation duty of the judge and the parts in the Brazilian Civic Procedural Law. We analysed, in the present essay, the normative and value dimensions of the procedural cooperation, while a juridical phenomenon, based on an epistemological and axiological approach. There are two main objectives in this essay, namely: (i) to demonstrate that, due to the cultural and historical remnants, regarding mainly the juridical centralism and the litigation culture, which tends to obscure the development of the recent paradigmatic transition occurred in the civic procedure, the duty of procedural cooperation, in the manner which it is attributed in the Brazilian juridical ordination, lacks effectivity; and (ii) to promote the cooperation through positive stimuli, such as punctuating the juridical education in Law Schools in cooperative procedural practices, as well as through the negative pressure (coercive measures) regarding the example of the increase, without loss of the sanctions of procedural nature and of the disciplinary sanctions. To reach these objectives, we utilized, as a methodology, the qualitative research, of the bibliographic and documental kind, with propositional bias and with the support of the deductive logic.