Formalismo-valorativo e a proibição ao fundamento decisório surpresa : reflexos na decisão de saneamento e de organização processual

Abstract

The current study of Brazilian Civil Procedural Law shows the undeniable influences of methodological developments in this field, but also refers to the recognition and implementation of the normative force of the Federal Constitution of 1988, to the practical implementation of the effectiveness of the principles of this Political Charter, as well as to the analysis of procedural matters with a view to realizing fundamental rights and a Democratic Procedural System. With the advent of the novel Code of Civil Procedure, a procedural model marked by the valorization and effectiveness of constitutional principles was established and this occurred, through the adoption of new institutes, as well as through reformulations of instruments already used by the national procedural, which pertinently includes the formerly called “Sanitation Dispatch”. This Sanitation and Organization mechanism, through known decisionmaking grounds, aims to exclude decisions taken voluntarily and subjectively by the magistrate in the exercise of his judicial activity, and, consequently, the imposition of rationality and argumentative coherence to the magistrates, the which reveals it as a privileged procedural locus and moment, as it is inserted in the quality of a special aspect of procedural Formalism-Valorative. As an objective, it was necessary to demonstrate the hypothesis that the Sanitation and Process Organization Decision occurs in a prospective and retrospective way, being essential to avoid surprises to the parties, guaranteeing a democratically fair and effective process. By having prior knowledge of the relevant legal matter, the parties will be able to concentrate their efforts, even avoiding unnecessary debates, which will facilitate the exercise of the adversary, thus substantiating a special aspect of procedural formalism-value. The present work uses the method of bibliographic review, by consulting the national doctrine and publications in periodicals, in addition to citing informative newspapers, all in Portuguese, or their translations in this language, duly referenced.