O dever geral de cooperação judiciária (art. 67 do CPC) : interação, engajamento e controle

Abstract

The general duty of judicial cooperation enshrined in article 67 of the Civil Procedure Code challenges doctrine and practice when it comes to identifying the due conduct owed by the actors of cooperation in the justice system. This work aims to dogmatically identify its content. It starts with a bibliographical investigation of doctrine, jurisprudence and practical experiences in matters of judicial cooperation. Initially, it focuses on identifying the article 67’s textual aspect, which is designed as a general clause. The point is fundamental, as one cannot forget the importance that doctrine and operators will have (whether in the jurisprudential production or in the practical development of the institute) for the implementation of the norm inscribed there, especially in the identification of due and improper conduct. It is also important to understand the context in which judicial cooperation is inserted as a technique in the justice system. Therefore, its fundamental elements (actor, types, instruments and objects) and the normative sources directly related with its organization are identified. Having placed these general aspects of the subject, we continue by situating the rule of article 67 of the CPC as a fundamental norm, identifying its function in reinterpreting the perception that the process is a bundle of bundles of legal relationships, especially with the identification that there are trans-procedural legal relationships. Therefore, it is concluded that national judicial cooperation is an important instrument for case management in the justice system. Restricting the object of the thesis to the duty of judicial cooperation and in the analysis of the conduct owed by magistrates as cooperating actor, the attention is intended to detach (even if related) the norms of article 6th and 67 of the CPC. Afterwards, the central core of the general duty of cooperation with a specific conduct is identified: interacting motivatedly. Alongside, there is a general duty of conduct, identified as the general duty of engagement, responsible of imposing on the actors of the justice system the duty to remain open to dialogue, before, during and after acts in judicial cooperation. Well placed, the provision, in our legal order, of a duty to cooperate, the last parte of the thesis is dedicated to the investigation of suitable instruments for controling undue conduct (through omission or commission), especially affirming the appropriateness of the conflict of jurisdiction.