Banca de QUALIFICAÇÃO: VITOR EMANUEL DE MEDEIROS AZEVEDO

Uma banca de QUALIFICAÇÃO de MESTRADO foi cadastrada pelo programa.
DISCENTE : VITOR EMANUEL DE MEDEIROS AZEVEDO
DATA : 06/06/2016
HORA: 08:00
LOCAL: Prédio do PPGD/UFRN
TÍTULO:

ABUSE OF RIGHTS OF INACTION

PALAVRAS-CHAVES:

Constitutional and civil procedure. Right of inaction. Abuse and penalties

PÁGINAS: 166
GRANDE ÁREA: Ciências Sociais Aplicadas
ÁREA: Direito
SUBÁREA: Direito Público
ESPECIALIDADE: Direito Constitucional
RESUMO:

The explosion of litigation in the Brazilian scene, stamped in the statistics of lawsuits in progress in several branches of the judiciary, instigates the proceduralist to analyze the legal conflict, from its birth, where there is, extrajudicial or judicial, the duel between action (claim) and inaction (counterclaim or resistance). Nonetheless the existence of these opposing figures and also important for the understanding of litigation and, consequently, the process, proceduralist science focuses all its attention on the action, while despises inaction about to relegate it to the field of sociology or presented it superficially as an absolute or potestative right. Establishing that, sometimes, inaction is used as a discouragement, procrastination and frustration device for the fulfillment of rights, the present paper investigates the existence of the legal concept of abuse of rights of inaction. Therefore, it asserts that inaction corresponds to a procedural right, namely the right to not recognize or satisfy others' claims, except by court order. It analyzes the relationship between the right of inaction and the general right to freedom, which is its most direct constitutional basis, as well as with the fundamental duty of obedience to the law, to the fundamental rights attached to the process and the rules relating to procedural good faith, concluding that its practice has constitutional and legal limitations which, when disrespected give rise to recognition of unconscionability. It maintains that abuse of right of inaction takes place when the exercise occurs diverted from their original purpose, involving the misuse of the judicial process as an obstacle to recognition and satisfaction of a clearly legitimate claim. It proposes the establishment of three requirements, which will be evaluated by na objective-finalist criteria, for the recognition of abuse of the right of inaction, which are, not be necessary a jurisdiction hypothesis, the consist of an easy case and the inexistence of legal reasoning (in fact and/or law) minimally plausible for the exercise of that alluded right. Finally, it concludes that the legal consequences for the abuse of the right of inaction are granting the claimant party of evidence relief and the sentencing of the defendant to pay punitive sums (fine for litigation in bad faith) and damages (losses, damages, including attorneys' fees and court costs) in favor of the plaintiffs.

MEMBROS DA BANCA:
Presidente - 2222637 - ARTUR CORTEZ BONIFACIO
Interno - 020.405.919-40 - CRISTINA FORONI CONSANI - UFSC
Interno - 1197589 - MARIA DOS REMEDIOS FONTES SILVA