Contribuição na política jurídica na solução de litígios no Brasil

resolução extrajudicial de conflitos pelos serviços notariais e de registro

Abstract

The thesis is inserted in the research line Constitutional Principality, Law Poli­cy, and Artificial Intelligence, and in the research project “Governance, consti­tutionalism, transnationality, and sustainability”. Its theme is the use of notary and registry services as an instrument to solve conflicts of interest by means of decisions/judgments with final effect, and in this way, it seeks the contribu­tion of Legal Policy in the effectiveness and concretion of the solution of litiga­tion. With the breaking of the paradigm of exclusivity of state jurisdiction by arbitration, with competence to render an arbitration decision with res judi­cata, formally and materially, characterizing from there a judicial enforcement order, notarial and registration services, due to the public faith inherent to them, can render decisions in patrimonial questions that admit a disposition of will, under the auspices of definitiveness, acting as true agents of justice. Starting from the Legal Policy and the phenomenon of legal pluralism, this Thesis proposes that the functions of notary and registry services should be extended, enabling them to act as instruments for extrajudicial conflict re­solution, and thus contribute to access to justice and conflict resolution, es­pecially in areas where the Judiciary cannot reach, in view of the breadth of the capillarity of the extrajudicial service. This thesis is divided into five chap­ters. Chapter 1 presents some historical and conceptual notions regarding the understanding of the constitutional guarantee of access to justice. Chapter 2 deals with the evolution of the State, from the Absolute State to the Democra­tic State of Law. It then sets out the factors that impelled society to demand in the judicial channels, in a movement of increasing judicialization, in large part from people’s daily lives. Chapter 3 presents a current portrait of Brazi­lian Justice, reinforced with the scale of judicialization of social relations. The graphs extracted from the latest Justice in Numbers survey (2021) demonstra­te, in addition to the historical series of pending cases, the number of courts in Brazil, the productivity levels of judges compared to the workload, giving examples from other countries of Latin America and Europe, the congestion rate by type of case and the average processing time by branches of justice, giving visibility to the State Justice. Chapter 4 explains the notarial and registry services, from their historical origin and evolution to their current design and format. Confronting the principled basis of extrajudicial activity highlights its public nature and the application of the constitutional principles of public ad­ministration provided for in Article 37 of the Federal Constitution, in addition to the provision of other principles that specifically guide the functioning of the notarial and registry service, and in this particular, with greater visibility the principle of public faith as a bulwark of all extrajudicial activity, in view of the guarantee that the acts performed by its holders bear the presumption of truth. Chapter 5 discusses the core of the subject, demonstrating that notary and registry services have the capacity, competence, capillarity structure and ability to participate in the decision-making process for the extrajudicial resolution of conflicts in cases of a patrimonial nature, proffering judgments and resolving cases submitted to it by the user, definitively and with final judg­ment. The dejudicialization movement fostered by legal pluralism as a means of transferring competences hitherto affected to the judicial pillars to the ex­trajudicial sphere, as a phenomenon defended by the Legal Policy, maintains that the jurisdiction does not have the exclusivity to resolve and guarantee rights. This dissertation ends with the Conclusion, in which some highlighted aspects of the Thesis are presented, followed by a call for the continuity of stu­dies and reflections on the movement of dejudicialization of demands and the consequent expansion of the functions of notary xiv and registration services, as a way of relieving the Judiciary and achieving access to justice, especially in more remote areas of the country. As for the Methodology used, the Thesis is expressed using the inductive logical basis.