A oponibilidade da convenção processual atípica sobre prova ao juiz de direito no processo civil brasileiro

Abstract

Article 190 of the 2015 Brazilian Code of Civil Procedure, enshrined as a general clause of procedural negotiation, authorizes the procedural subjects to enter into atypical procedural legal transactions. This provision, aligned with the pillars of consensual dispute resolution, the cooperative model of procedure, and the valorization of self-regulation of will, recognizes the parties’ ability to enter into procedural agreements regarding means of evidence. On the other hand, a literal interpretation of Article 370 of the Code, which allows the judge to determine evidence ex officio and to dismiss that which is deemed unnecessary, appears, at first glance, as an obstacle to the parties' freedom to dispose over evidentiary matters. This gives rise to the following question: in the event of a conflict between what has been agreed upon by the parties and the judge's initiative in the evidentiary phase, which should prevail? In this context, the present research is limited to the analysis of two specific scenarios: procedural agreements with limiting effects on evidence, and those with a determinative effect. To examine these scenarios, the study seeks to explore the intersections between private autonomy and the judge’s evidentiary powers, based on a systemic reading of the current Code of Civil Procedure, in order to determine whether procedural agreements have the capacity to limit or guide the judge’s evidentiary activity. It is concluded that, in the case of an agreement limiting evidence, the judge’s powers are constrained by what the parties have agreed upon, and the judge is not permitted to produce evidence ex officio. Conversely, when dealing with a determinative agreement regarding evidence that proves to be unnecessary for the resolution of the dispute, the judge may dismiss its production.