Negócios jurídicos processuais atípicos e a eficiência da prestação jurisdicional no modelo cooperativo

Abstract

The purpose of this paper is to analyze how atypical procedural legal transactions, included in the cooperative process model adopted by the 2015 Brazilian Code of Civil Procedure, impact the efficiency of state judicial services. To this end, the concept of the term “efficiency” is examined from the perspective of the Economic Analysis of Law (EAL), seeking to define what may or may not be considered efficient within the context of collaborative procedures. It also outlines the origin and foundations of atypical legal transactions as an instrument of the fundamental procedural right to freedom. The autonomy of the parties, safeguarded by the general clause on procedural negotiation, set out in article 190 of the CPC/15, must take into consideration the division of roles between procedural subjects, established by the collaborative model, and strike a balance between respect for party autonomy and the duty of validity control to be exercised by the judge. The balance between the prerogatives of the parties and those of the magistrate at the time of signing procedural agreements is aligned with the principles of the collaborative model, fostering efficient judicial services. The methodology adopted for the research is of a basic nature, based on the dialectical scientific method and aims to analyze the impacts of atypical procedural legal agreements on efficient judicial services, given the cooperative process model. The research also adopts a qualitative approach, by deepening the understanding of the relationships between procedural subjects in the conclusion of atypical legal transactions, and quantitative, by using data from the National Council of Justice (CNJ), as well as empirical results collected in Judicial Centers for Conflict Resolution and Citizenship (CEJUSCs). The research seeks to show that increasing the autonomy of the parties in the conduct of the process, through the realization of atypical transactions, can contribute to a faster and more efficient judicial protection, as long as their conclusion is in accordance with the parameters established by the Brazilian legal system and in line with the socioeconomic criteria defined by the EAL.