The Procedural Flexibility by the Judge and Superior Court of Justice Stance

Abstract

This study pursues to establish standards for procedural flexibility by the judge and analysis of the position of the Superior Court of Justice on the subject. Using the deductive method with Jurisprudence and Precedent review, is based on the study of the cooperative process model, characterized by the resizing of the judge's performance and its relationship with the parties, as the basis of procedural flexibilization, to demonstrate that the cooperative process model, inaugurating a new relationship between parties, based on the active participation of the parties involved in the demand, grounds and legitimizes the adaptation of the procedure by the judge. Then, after studying procedural flexibilization, defining it as a procedural technique that enable acts and procedures to be adjusted or adapted to the peculiarities of the case, affording a better effectiveness to judicial protection, it is established as a standard of procedural flexibility, beyond adversarial principle, the motivation of judicial decisions, since the grounds of the decision are the elements that allow the gauging of the constitutional and democratic legitimacy of judicial pronouncements. In the end, after concluding that procedural flexibility by the judge should only occur when the procedural variation is effective for a better installment of judicial protection, it appears that the Superior Court of Justice has admitted procedural variation when the legal form established by the system is not able to effectively protect substantive law, always in a reasoned decision and honoring to the adversarial principle.