O controle judicial de validade dos negócios jurídicos processuais e o posicionamento do Superior Tribunal de Justiça

Abstract

The objective of this dissertation was to analyze the judicial control of the validity of procedural legal agreements formulated by the parties based on the general procedural negotiation clause set out in Article 190 of the CPC.A deductive approach was used to achieve this objective, which was developed through bibliographical, documentary, and jurisprudential research and analysis of precedents. Five judgments handed down by the Superior Court of Justice on the subject of the research were selected for analysis. The structure of the work was meticulously divided into three sections: an introduction, a development in four sections, and final considerations. The initial section sought to establish a theoretical foundation for procedural legal transactions by examining the institute within the theory of legal facts and analyzing its principiological foundations, of which the self-regulation of will stands out. The second section addressed the typology of the institute by studying its concept, legal nature, and classifications. The section delved into the intricacies of the general procedural negotiation clause, exploring its connection to the notion of atypical negotiation. The third section adopted a comparative approach, examining the legal treatment of the institute in various countries, including Portugal, France, Italy, and others. It also investigated the privatist and publicist conceptions in procedural law and the challenges confronting the practical implementation of this institute within the Brazilian context. Finally, the fourth section investigated the criteria and limits that aim to guide the control of the validity of these negotiations in procedural matters, emphasizing the work of the Superior Court of Justice. Through its case law, the Superior Court of Justice has sought to establish guidelines that can support this control and serve as a basis for future decisions on this issue, acting as a guide for judges. Consequently, the research determined that the flexibilization of the procedure authorized by the general procedural negotiation clause must be utilized judiciously to avoid any potential abuses or violations of rights, while still ensuring the protection of fundamental rights in the procedural sphere. Otherwise, the process's role as a mechanism for social pacification and conflict management could be compromised. The study also identified that, although the expansion of the autonomy granted to the parties by the provisions of Article 190 of the Code of Civil Procedure is recognized, this freedom is conditioned on compliance with fundamental principles of the legal system, such as good faith and procedural loyalty, full defense and adversarial proceedings, due process of law, the natural judge, among others. It is imperative to note that this autonomy in negotiation must not result in a diminution of the judge's investigative authority and the pursuit of truth. Failure to do so would compromise the provision of justice. A meticulous examination of the judgments reveals that the Superior Court of Justice has adopted a judicious and balanced approach when interpreting the general procedural negotiation clause. The decisions consistently articulate the necessity of constraining the autonomy of the parties to avert negotiations that contravene the fundamental rights of the litigants or that engender an imbalance between them.