A conciliação mediação como métodos alternativos de resolução de conflitos objetivando a acessibilidade à justiça

Abstract

The purpose of this monograph is to discuss a still incipient subject in the new Civil Procedure Code of 2015: the limit of the matter returned to the judging panel, compared to its §2º. The choice of the subject, and therefore of the discussion mentioned, started from the finding of the omission of the legislator in the writing of the article, which is too broad, allowing interpretations contrary to the very conceptual nature of the institute of prestige to divergent decisions. The analysis of the subject begins with its historical approach, from the reasons for the creation of an institute that allowed the prevalence of the divergent decision in Portugal in the XV century, until the Embargos Infringentes as known in the repeal of the Civil Procedure Code of 1973 and its transition to the new technique of judgment introduced by the article 942 of the Civil Procedure Code of 2015. An examination is also made of several controversial issues arising from the Embargos Infringentes under the aegis of the revoked Civil Procedure Code and its possible implications in the current Procedural Code, until the arrive on the subject of this monograph, that is also one of the controversies of the Civil Procedure Code of 2015. The conclusion to be drawn is that, with due regard for different understandings, the legislator was silent in the writing of the article 942, especially of its §2º, so that by the system of the provision in the article there is no limit to the magistrates who make up the original formation of the judging panel to review their votes. In other words, they can not only reform their vote in relation to the divergent matter, but also in relation to a point already voted unanimously, which is absolutely contrary to the legal nature of the institute, which can not be admitted