Convenções processuais atípicas: eficácia horizontal dos direitos fundamentais como limitação à autonomia da vontade

Abstract

The purpose of this paper is to analyze the systematics of the Atypical Procedural Conventions, expressly admitted from the New Code of Civil Procedure, which brought a general convention clause, from the point of view of respect for the essential core of fundamental rights. It is verified that there is an increase in the importance of the will of the parties, establishing the principle of respect for the self-will of the will as an important parameter to be followed, mainly by the State-judge. However, procedural conventions generally do not escape the limits and, especially atypical ones, because they do not find legal delineations, they must be based on fundamental rights. This is possible from the understanding that there is a horizontal effectiveness, that is, that the fundamental rights apply to the relation citizen/citizen. Thus, based on the critical analysis of the specialized bibliography, the research was based on the conciliation of ideas that were confrontational, in order to reconcile negotiation freedom with the essential rights applicable to the process through the criterion of proportionality.