A redação do art. 489, §1°, iv, do NCPC como instrumento de discricionariedade do julgador frente ao dever de fundamentação

Abstract

This research seeks to analyze the reforms of the New Code of Civil Procedure, its main changes and its objectives, deepening the specific search for a device that deals with the basis of judicial decisions, Article 489, §1. The duty of justification of the judge will be observed in the light of the free convincing, understanding whether or not this prerogative has been maintained in the new legislation. The duty to state reasons will also be examined in the light of the principle of adversarial procedure. A study of section IV of article 489, paragraph 1 of the NCPC, will be studied in detail, providing the necessary criticisms regarding the term "in thesis" chosen by the legislator. It also seeks to investigate the discretion of the judge by selecting the arguments that will rebut in his reasoning and how the expression "in thesis" serves this behavior. In order to do so, the deductive and dialectical methods will be used in order to obtain, from the general premises, singular conclusions, but always in view of the context in which judicial decisions are inserted and their role in society. Finally, it will be possible to arrive at the following questions: 1 - when the judge bases the judicial decision, reduce the interposition of resources, since the parties are convinced of the conclusion; 2 - the Judge must raise in his statement of reasons all the arguments that were deduced by the parties in the procedural debate, even if for the purpose of disposal; 3 - the adversarial procedure established in the case must serve as an instrument for the judge when examining the arguments that will be included in the decision, even if he does not accept them.