Banca de DEFESA: VITOR EMANUEL DE MEDEIROS AZEVEDO
Uma banca de DEFESA de MESTRADO foi cadastrada pelo programa.DISCENTE : VITOR EMANUEL DE MEDEIROS AZEVEDO
DATA : 26/07/2016
HORA: 17:00
LOCAL: UFRN-NÚCLEO DE PÓS-GRADUAÇÃO EM DIREITO
TÍTULO:
ABUSE OF RIGHTS OF INACTION
PALAVRAS-CHAVES:
Constitutional and civil procedure. Right of inaction. Abuse and penalties.
PÁGINAS: 184
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 objectivefinalist 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
Externo à Instituição - PAULO LOPO SARAIVA - MaterChrist