Adequação procedimental da resposta do réu: uma prática afirmativa das normas fundamentais do direito processual civil

Abstract

The present course conclusion paper addresses the defendant's response from the perspective of the fundamental norms of Civil Procedure, investigating the concretization and affirmative practice of its principles within the judicial sphere. The research problem focuses on the tension between theory and practice, questioning whether the procedural guarantees of the defendant are fully realized in forensic dynamics, or if there are inconsistencies that compromise the effectiveness of the adversary principle (contraditório) and the right to a full defense. The central objective of the study was to analyze the defendant's response in the 2015 Code of Civil Procedure (CPC), focusing on identifying axiological gaps and points of fragility that impede the full manifestation of fundamental norms, always comparing it with the plaintiff’s initial pleading, the Initial Petition. First, the deadline for the defendant's response was analyzed, pointing out criticisms of the general criterion established in the current model, the ephemeral nature, and the circumstances related to the defendant itself, such as hypo-sufficiency (lack of means/vulnerability) and illiteracy, and how these factors influence the defendant's defense. The impossibility of amending the defendant's response was also analyzed, based on the understanding that this possibility is offered to the plaintiff; thus, the dynamism and isonomy (equality) of the civil procedure are mitigated, and one party is favored. Finally, consummation preclusion was analyzed as a factor detrimental to the defendant's defense, based on the understanding that the current model is rigid and unjust when the defendant makes use of both the Statement of Defense (Contestação) and the Counterclaim. Based on these critical analyses, the work sought to propose pertinent adjustments aimed at improving not only the text of the law but, mainly, its practical application by legal operators. To this end, the research was developed based on an in-depth bibliographical analysis, which included a review of the most relevant doctrine on the topic, and a rigorous analysis of the jurisprudence of the superior courts. This methodological combination allowed for a dialogue between the theoretical framework and the legal reality, revealing how the ideological inconsistencies manifest themselves in judicial decisions. The results indicated that, although the current Code of Civil Procedure is widely recognized as modern, robust, and innovative, conceptual flaws still persist that prevent the full realization of fundamental rights in the procedural sphere. It is thus concluded that the implementation of normative and interpretative adjustments is crucial to guarantee the effectiveness of constitutional precepts and ensure a more just, swift, and aligned forensic practice with the demands of a democratic legal system