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Revista Magister de Direito Civil e Processual Civil, n. . 42 CÂMARA, Alexandre Freitas. Lições de processo civil canônico (história e direito vigente). O Direito Romano E O Direito Civil Brasileiro (Rio De Janeiro: Forense ). In The Same Sentence, The Reporter Cites To Vladmir Passos De Freitas & Gilberto Passos De Freitas, Crimes Against Nature 52 (Reviewed .. 43 Alexandre Freitas Câmara. Lições De Direito Processual Civil. . Download pdf. ×Close. Graduada em Direito pela UFS, Especialista em Direito Processual pela UFSC, Mestre .. de , na versão aprovada pela Câmara dos Deputados, tinha, no que diz de civil. Essas modificações foram confirmadas passo após passo, nas demais ROSA, Alexandre Morais da. FREITAS, Carlos G. L. de & outros.

Therefore, the repercussion of case management on court management was not the goal of the case management activity, as the latter was envisaged on a case-by-case basis. Case time and cost management for plaintiffs in multidistrict litigation.

Louisiana Law Review, vol. Costs orders as a case management tool. The Civil Procedure Rules ten years on. Antonio Cabral In recent times, adjudication mechanisms of jurisdictional nature applicable by a judge within judicial proceedings are beginning to flourish and develop also to enable the management of many procedures at once.

An example are the standard-solution procedures, proceedings for the resolution en bloc of multiple claims on the same issue of fact or law, such as test claims, model proceedings, pilot-judgements and the like.

The biggest difference is that these techniques promote large-scale solutions, albeit as a function of adjudication, that is jurisdictional and not administrative activities like court management , with all the differences of principles and guarantees between these two spheres. Evolution of the purposes of case management.

Efficiency and fundamental guarantees of the parties. The balance between legality and the reduction of formalism With regard to the goals of the management activity, some lines of thought can be developed. An initial reference is that applying efficiency to adjudication does not mean abandoning the fundamental guarantees of procedural law. The balance between efficiency and guarantees follows the precept that procedural law is aimed at the protection of legal rights, and must indeed provide it in an effective and efficient manner, but always respecting the constitutional rights of all stakeholders.

Standard-solution procedures and mass litigation. International Journal of Procedural Law, vol. Rivista di Diritto Processuale, vol. ROTH, Thomas. Das Grundrecht auf den gesetzlichen Richter. Berlin, , p. Antonio Cabral That is why the quest for efficiency cannot stem from a purely quantitative concept, focused only upon swiftness and cost reduction in order to satisfy government priorities.

The savings logic has limits, and concern over efficiency and the outcome of judicial processes cannot allow the fundamental guarantees of the due process of law to be breached or overlooked. Efficiency must be viewed as an adjustment in the allocation of resources in order to maximise the exercise of these fundamental guarantees.

To this effect, efficiency itself takes on the dimension of a guarantee, provided it is understood to be a way of optimising substantive rights. Marcus says: Self-defence for institutions. Cambridge Law Journal, vol.

We must see the aspects of the lawfull judge not only from an unique prism, but considering all the aspects in which the principle of the lawful judge actually protects individuals control of arbitrariness, security, equality, impartiality, previsibility, coherence, efficiency.

Effizienz als Rechtsprinzip: Novas perspectivas da efetividade e do garantismo processual. Rio de Janeiro, , p. Antonio Cabral is a fundamental principle and also a limit for the formal loosening of procedural techniques for managing purposes.

The application of procedural rules nowadays depends on variable case-specific elements that cannot be entirely foreseen by statutory law.

On the contrary, efficiency aims to establish a finalistic legality, that promotes the practical results the legal system wants to achieve, but always within the framework of lawfulness.

New players involved in case management. The parties as key players: This shift is natural within the framework of the principle of cooperation in contemporary civil procedure, that constraint all actors judges and parties.

Die Grundrechte. Berlin, vol. III, t. Der gesetzliche Richter im Sinne von Art. Discretionary power of the judge: El derecho fundamental al juez predeterminado por la ley.

Antonio Cabral management of the proceedings, judicial case management does not exhaust the topic because the parties should also be key players in this task. Through the negotiation of the proceedings rules, parties seek to outline a format of proceeding that suits their interests, adapting the judicial process in order to render it more efficient.

That is, something similar to arbitration but in the realm of judiciary processes. One of the advantages of this technique is to afford greater predictability to proceedings.

The legal rules of the, as yet, potential judicial procedure are anticipated at the moment of signing a contract. At this point, the dispute may not even exist, and may never actually come about in practice. However, the parties provide from the outset the proceeding that will govern the dispute arising from the contract, should that dispute reach the point of being filed in court.

The judicial process begins, so to speak, long before the proceedings in court. The Brazilian new Code of Civil Procedure is possibly the most important legislation about this subject. Article states as follows: When the action deals with rights that permit the resolution of the dispute by the parties themselves, the parties can stipulate changes in the procedure to adapt it to the specific requirements of the case and can agree upon their burden, powers, procedural legal rights and obligations, before or during the proceedings.

Sole paragraph. Universidade do Estado do Rio de Janeiro, , p. Antonio Cabral And article states: Articles and pose general clauses of contract procedure, which enable the parties to agree upon the procedure and their legal situations without being limited to specific provisions. But there are other features of contract procedure worth highlighting because they introduce a major paradigm change to the activity of procedural management.

On one hand, case management always reflected a concern with the management of cases that have already been filed. With contract procedure, provided that contracts can be signed prior to the occurrence of the dispute, case management begins to deal with cases that have not yet reached the courts. Instead of managing pending disputes, one intends often to avoid litigation. Preventing, rather than curing, is something that could be seen as no-case management. Salvador, In China, Wang reports that there is little space for the parties to convene on proceedings, for the judges tend to play a leading role in the definition of procedural rules.

WANG, Fuhua. Antonio Cabral On the other hand, contract procedure also changes the logic of the adaptation through special proceedings.

If formerly, adaptation of judicial proceedings was a legislative task, with the creation of statutory special proceedings that would better fit the peculiarities of substantive law, nowadays, these special proceedings become increasingly unnecessary, as the formal loosening and adaptability of procedure begin to move towards the ordinary proceeding.

In other words, if the creation of statutory special proceeding rules was once based on the inflexibility of the ordinary proceeding, now that the ordinary proceeding becomes more flexbile and adaptable, we are closer to seeing the the death of special proceedings.

New structures 6. Court management and allocation efficiency: The traditional approach, limited to strict legality, does not meet the demands of modern society. Contract procedure can, indirectly, increase or reduce the costs of the implementation of rights, by rendering their enforcement more or less difficult; and they can establish a new evidentiary logic burden of proof, evaluation of evidence, etc , causing an impact on substantive law because they change the prognosis of spontaneous compliance with the rules.

In the normal exchanges of any contract, an improvement in the procedural legal position of one party could represent an advantage gained by the opposing party in another point of the negotiations, e. Therefore, it may not deal merely with the choice of more efficient procedures: And, mainly in contracts signed prior to the emergence of the dispute, contractually designing the future in-court proceedings may generate incentives for individual behaviour. By undertaking obligations and regulating procedure, the parties are indirectly delineating incentives that favour compliance with their legal obligations.

This aspect of contract procedure has been little studied a fortunate exception is the interesting analysis carried out by DODGE, Jaime L. The limits of procedural private ordering. Antonio Cabral been exhorted for quite some time. Juristen Zeitung, , p. Courts as catalysts: Columbia Journal of European Law, vol. Effektiver Rechtsschutz vor staatlichen Gerichten aus deutscher und vergleichender Sicht.

Die Verwaltung, , p. The quality of justice in Europe: Italian National Research Council: Research Institute on Judicial Systems, , p. The reflective court: Quality management in courts. Strasbourg, , p. Monitoring and Evaluation of Courts Activities and Performance. International Journal for Court Administration , p. Measurement of technical efficiency: Paper, University of Warwick, , available at http: Case assignment in Dutch courts.

In recent times, whether by hiring professional administrators, economists, accountants, etc, transferring functions to private persons justice outsourcing 57 or by instituting bodies outside the judiciary for the administrative and budgetary management such as management committees or councils, sometimes independent of the of the court itself; 58 or court judiciaries.

Translation Viola Heutger.

Internal case assignment and judicial impartiality: Viola Heutger. Privatization of enforcement services: Enforcement and Enforceability: Tradition and Reform. Enforcement in Russia: Justiz — Aufbruch oder Abbruch? Ressourceneinsatz und Arbeitsleistung der Justiz. It is important to highlight that court management does not need to be carried out necessarily by the judiciary itself judge-only.

Antonio Cabral managers, with more or less autonomy in relation to the decision-making bodies of the court59 , or even by the enhanced qualification of the judges themselves for this administrative task. On the other hand, adjustments in policies are more likely to be made when the manager and their teams can be changed if the planned outcomes are not achived.

This would be much more difficult when judges are those responsible for court management because they cannot be removed for a lack of managerial results. In Latin America, however, this has been hardly ever seen: Reconciling independence and accountability in judicial systems. Utrecht Law Review, vol. The politics of court budgeting in the States: Public Administration Review, vol. The development and reform of court organization and administration. Public Administration and Develpment, vol.

Reviewer - Rule

Judicial reform: Policy Studies Journal, vol. Brauchen wir einen Gerichtsmanager? Freiheit und Eigentum: Zur Selbsverwaltung der Dritten Gewalt. Modernisierung der Justiz: Das Neue Steuerungsmodell. Neue Juristische Wochenschrift, n. Antonio Cabral 6.

Specialisation of courts Especially with regard to the court management aspect, i. Specialisation is a professional practice based on the quest for knowledge and techniques to the extent that they can be exercised on a relatively high level when compared with other decision-making centres. Administrative jurisdiction or Labour and Military Courts 64, but is much more frequent when implemented in some subdivisions of trial first instance and appellate courts, such as a chamber or panel that is specialised by subject matter.

Mixed blessing of judicial specialisation: Russian Law Journal, vol. II, n. Probing the Effects of Judicial Specialisation. Duke Law Journal, vol. International Journal for Court Administration, , p. There is, in federal level, a common justice civil and criminal and other branches of administrative justice, a general or residual branch, the Verwaltungsgerichtsbarkeit, with subspecialisation in social security, tax and financial and labor.

Lately, a court specialised in trademarks and patentes was created Bundespatentgericht. Rousseau, 11th ed. Institutions judiciaires. Montchrestien, 12th ed. Dalloz, 27th ed. Sirey, , t. Sirey, 15th ed. Montchrestien, 3rd ed. The best example, without any doubt, is the Military Justice, which number of processes absolutely does not justify its existence. Within the Federal jurisdiction, in the various circuits, there are specific courts for social security, environmental, agrarian, tax and tax foreclosure, intellectual property and trademark, home loan system matters, or matters regarding the Hague Convention on the Civil Aspects of International Child Abduction, among others.

Benefits of specialisation derived by the parties and by the system The specialisation of courts brings many benefits. On one hand, it enables the attainment of greater speed and efficiency not only by assigning more complex cases to judges experienced on that topic, but also because the repeated analysis of similar issues may encourage judges to develop routines, to establish performance models and extend their knowledge on the same issues.

But the effect on the system is also positive. Contrarily, when the dispute is brought before a specialised judge, lawyers trust her ability to understand the dispute and tend to reduce their activities, for example decreasing the length of their pleadings, which saves costs and time. From a different perspective, specialisation removes the obstacles that these very lawsuits constantly produce in a court of full and generalist competence, reducing, in these and other courts, the processing time of all the other procedures.

Court Review, n. Overview of Specialized Courts.

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Specialisation of judges and the lenght of proceedings: Lithuanian approach. Is there a right judge for each case? A comparative study of case assignment in six European countries.

European Journal of Legal Studies, vol.

Antonio Cabral Another advantage of specialisation is that it gives rise to a greater uniformity of decisions, which favours integrity and consistency of the legal system as advocated by the precedent model of the brazilian CPC, articles and Disadvantages of specialisation One cannot deny that specialisation also has its disadvantageous effects on the framework of court management and the division of competences among judges. One of the dangers of excessive specialisation is the distortion of concentrating all the expertise on a specific matter in the hands of a single judge.

This is what happened in Brazil in criminal proceedings with courts specialised in money laundering and financial crimes, which normally have jurisdiction over a whole Judicial District which can encompass an entire State of the Federation.

In these courts, what one notes is that the judge becomes the personification of justice. Developing Specialized Court Services: International Experiences and Lessons Learned. Antonio Cabral equally relevant for the solution of the case. Judging, Expertise and the Rule of Law. Washington University Law Review, vol. Posner remembers that specialisation restricts a cross-exchange of ideas between courts.

Will the Federal Courts of Appeals Survive until ? Imperfect alternatives: Chicago, , p. One should notice that some authors question whether specialisation makes the judge more prestigious. In their opinion, broader competences mean more power, and prestige. Specialize the Judge, Not the Court: A Lesson from the German Constitutional Court.

Virginia Law Review, vol. Grounds for the specialisation of courts and judges in Russia. Antonio Cabral Despite this criticism, the overall balance has been of general agreement that, if well conducted, specialisation brings more benefits than harm to judicial organisation. Case assignment management. Upon analysis of many systems from a comparative perspective, one can note that efficiency in the allocation of competences is greatly neglected in many of them, reduced almost to dividing equally the dockets among judges of equal subject-matter jurisdiction, a purely quantitative approach.

This paradigm must be broken in favour of more functionality and flexibility. Judicial specialization: Specialisation of judges as an efficiency factor in civil justice. Beck, , p. Antonio Cabral Functionality is an intrinsic characteristic not only of case management80 but also of the most fundamental objectives of the system of competences, which is structured and based on the attainment of a suitable division of tasks among the various decision-making centers.

The experience in some legal systems shows such a change of paradigm. More and more courts around the globe think on different ways of designing judicial structures and allocating resources to them in order to enhance management results through a better case assingment. Toward a functional approach for managing complex litigation. La competenza surrogatoria ed il principio del giudice naturale nel processo penale. Rivista italiana di diritto e procedura penale, IV, , p.

Cortes superiores e cortes supremas: Balancing Territoriality and Functionality; Specialization Germany. Reshaping Justice: Judicial reform and adjudication in the Netherlands. Maastricht, , p.

Quality assessment of courts and the Judiciary: Access to Justice and the Judiciary: Antonio Cabral proved that it is possible to reconcile, within the framework of the lawful judge, guarantees and efficiency, applying a more flexible system of competences with adaptability and techniques of decentralisation and coordination , 85 but nevertheless rational and suited to contemporary challenges.

Redefining the principle of the lawful judge Case assignment management raises questions on its compatibility with the principle of the lawful judge, which is traditionally based on some widespread assumptions, ideas upon which its lawfulness rests: This format seems to be outdated.

In many judicial systems, in common law and civil law jurisdictions, one can see several procedural mechanisms that authorize case assignment to be determined by judicial decisions or contract procedure, allowing discretionary allocation of cases among judges on efficiency Berlin, , p. Antonio Cabral grounds, and permitting changes and transfer of jurisdiction even after the case has started before a certain court.

In France, for example, to achieve a more efficient court management, ex post facto changes of jurisdiction are permitted. This mobility can be internal, within a district, as judges are appointed not only primarily to fill the vacancies of one court, but also the vacancies of all others. Il principio del giudice naturale nel diritto costituzionale francese. Quaderni del Consiglio Superiore della Magistratura, vol.

The described indicators and statistics show that this was a fruitful experience. Improved Performance of The Netherlands Judiciary: Assessment of the Gains for Society.

Information in english about the Dutch legal system in https: This mobility is a characteristic of Dutch judicial organization. Antonio Cabral be called upon to act in any court of that district if the president of the higher court so determines.

But there is also the possibility of external mobility, i. In the cases of external mobility, as there is no ordinary appointment of the judge in that district neither primary, nor secondary , the appointed judge must agree to the assignment.

Of course, the legal culture in those places is not equal to every other legal system, and maybe in these wealthy and developed countries the system often works because one does not feel the need to establish mechanisms to ban the manipulation of competences.

Well, if based on the traditional format of the principle of the lawful judge, a quick look at some of these legal systems would lead the observer to conclude that many of them might violate recurrently the principle. And one could say that the principle does not protect the individuals anymore, since case assignment, transfer and changes of competence are made after the case has been brought 92 VOET, Stefaan.

Recht und Justizhoheit. Berlin, 2th ed. Antonio Cabral before an initial court ex post facto , by means of judicial decisions not only legislative norms and sometimes with discretionary standards. So we ought to ask ourselves whether all these instruments are to be considered unconstitutional or against international treaties; or if we should reassess and redefine the principle of the lawful judge, for it to actually protect people that seek adjudication as a means of conflict resolution.

I think that in contemporary civil procedure, efficiency in case assignment is compatible with the principle of the lawful judge, but only if the principle is redefined in its scope and content. I propose that the principle of the lawful judge is to be interpreted as the prohibition of unpredictable case assignment and manipulation of competence rules.

The principle nowadays demands that jurisdiction rules must be: The principle of the lawful judge should not prohibit allocation of cases or transfer and changes in competence of pending cases for efficiency purposes, but as long as it guarantees 3 predictability and participation of the parties in the determination of jurisdiction. Taking part and being able to influence decisions about case assignment contradictory principle and the right to a fair hearing would reduce objections of insecurity and unpredictability.

Between microjustice and macrojustice: Antonio Cabral considerations. This combination is absolutely indispensable to the justice system in the contemporary world for two reasons.

On the other hand, this intersection between the case and the system in considerations of efficiency allows the judge to make use of arguments that are not strictly jurisdictional being able to draw on those related to court management in order to decide on the rules for case assignment.

In page , he says: Processos estruturais no direito brasileiro: Revista de Processo Comparado, vol. Do processo bipolar a um processo coletivo-estrutural. Antonio Cabral the relationship between efficiency and competences, it should be noted that efficiency in civil procedure imposes that we consider not only jurisdictional aspects but also those of court organisation and administrative management.

Flexibility and adaptability: Can it be achieved by the proposed new approach of the principle of the lawful judge? We have seen that procedural efficiency imposes a performance guideline in terms of adopting atypical techniques in order to provide the judicial process with an optimal solution. Curso de direito processual civil.

Títulos relacionados

Rio de Janeiro, vol. I, 46th ed. Diritto processuale civile. Milano, vol. This vision is usually followed by more prominent considerations about procedural efficiency.

Remo Caponi affirms: Um exemplo sobressai nesse campo: This perspective is very frequent in French legal literature. Droit processuel: Dalloz, 2th ed. Cadiet and Jeuland say:: Lexis Nexis, 8th ed.

We do not think this idea to be essential to defend that the judge, while exercising his jurisdictional powers, should be guided by efficiency criteria. Antonio Cabral legal doctrines, but have the common goal of providing more flexibility and adaptability. Flexibility of the system of competences means mitigating formal rigour, optimising the procedural legal acts performed by the court lacking jurisdiction and preserving their effects, to the greatest extent possible, in the competent court translatio iudicii.

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On the other side, adaptability entails the possibility of changing or transferring jurisdiction during the proceedings, flexibility in the appointment of judges and composition of benches and panels, and waiver of statutory rights in favour of models of proceedings carved by the parties through contract procedure. In sum, it is a matter of case assignment and determining jurisdiction on the basis of criteria of efficiency, which were not found in the primitive concept of the lawful judge, but which can nowadays be compatible with that principle.

Kommentar zur Zivilprozessordnung. Mohr Siebeck, 22th Ed.

Dutch Civil Procedure: Frankfurt am Main, , p. Zur Auslegung des Art. Das Recht auf den gesetzlichen Richter. Die Gesetzlichkeit des Richters. Indeed, it is possible for the new trends of the competence system to function within this flexible and adaptable framework without relinquishing the necessary protection of the essential core of the principle of the lawful judge. For instance, allowing discretion in case assignment does not mean absence of control; fostering the activity of itinerant judges specialised in complex cases does not waive the establishment of objective criteria for the selection of those judges and the assignment of cases to them; the requirement that the competences should be provided for in a general and previous rule does not imply the impossibility of modifying jurisdiction once the procedure has begun, provided this alteration is predictable and unchanging, equally applicable to any other future case where similar circumstances are observed.

Delegation and coordination of competences 7.

Opções de acessibilidade

Definition and admissibility Jurisdiction delegation is the declaration by which a judge attributes another state body or person the power to perform legal acts that would correspond to the exercise of her own competences. Giudice naturale e processo penale. Roma, , p. III, 2th Ed. Padova, , vol. II, p. Die Lehre von den Staatenverbindungen. Aalen, , p. Antonio Cabral Jurisdiction delegation is usually based on efficiency grounds, when the court considers that the transfer in totum or ad actum of competences to another institution or person could produce a more efficient result.

Jurisdiction delegation is more common than one would assume. It is first of all, a very old practice. It could be observed in Roman Law in several of its phases, and was frequent in Europe during many centuries. Stuttgart, , p. Delegation und Mandat: Eine rechts- und verfassungstheoretische Untersuchung. Der Staat, vol. III, , p.

Madrid, , p. Some passages of Roman sources point to the same conclusion. The comentators and glossators used to draw a distinction between the delegation of competence for all cases ad universitatem causarum and the delegation restricted to one case ad unam causam. Il giudice ordinario le variabili nella tradizione del diritto comune europeo.

Rivista di Diritto Processuale, , p. In Canonic Law, the Pope had the adjudication power and he could delegate and order a transfer back every case submitted to ecclesiastical courts. Antonio Cabral Of course all these examples were based on the understanding of adjudication as equivalent to the sovreign power of the monarch or feudal lord, an attribute of his property that could be transfered and transmitted to others.

Questions of Public Law. Translation Tenney Frank, , book 2, chapter 12, available http: Lehrbuch des Zivilprozessrechts. Karlsruhe, 7th ed. Der gesetzliche Richter — Verfassungsprinzip oder Ermessensfrage? Modernisierung von Recht und Justiz: Reinventing structural reform litigation: Columbia Law Review, vol. Antonio Cabral Judiciary with the exception of final judgments. The Constitution also allows the Supreme Court to delegate competences regarding the enforcement of its own decisions and sentences.

But there are several other examples of delegation of pre-trial gathering of evidence by means of rogatory letter or letter of request. The Code of Civil Procedure provides for other cases of delegation regarding the rescisory action art. Sometimes, legal systems attribute functions to private persons; some other times, the creditor herself acts as a director or manager of the execution, with powers to subdelegate.

I, 4th ed. Manual de Direito Processual Civil. The conflicts between the fundamental rights of the creditor and the debtor. Freiburg im Breisgau, , p. Juristen Zeitung, vol. Paris, 12th ed.

Paris, 7th ed. Privatisierung des Gerichtsvollzieherwesens. Hamburg, , p. Antonio Cabral awards, administrative decisions and other titres. In all these cases delegation of powers to someone that has to report back to the delegator judge abound. But also in collective and class actions, especially in the so-called structural litigation when it comes to correct or change public policy and reform administrative bodies and structures , judges tend to create adjudicatory HESS, Burkhard.

Different enforcement structures. A model for an enforcement regime: Special masters in complex cases: The Dutch Court Bailiffs Act eight years after its introduction. A tutela coletiva de interesses individuais: Antonio Cabral facilities to whom some jurisdictional powers are transfered, and also delegate functions to agencies or masters. Of course, we cannont forget that legal systems sometimes restrict the object of the delegation, preventing judges to delegate the power to decide the conflict, that is, to sentence the case on the merits.

In some jurisdictions, the possibility to delegate jurisdictional powers depends on the delegatee or on the type of the legal act to be performed: From cases to litigation. Law and Contemporary Problems, vol. See art. That varies a lot from country to country, but are usually linked to arrest, emprisonment, coercitive measures, etc. Per un nuovo concetto di giurisdizione. Antonio Cabral vehement utterances of rejection. Especially in civil law jurisdictions, objections to the delegation of competences are frequently raised by legal scholars.

The argument is based, as one can easily see, in an old conception about the principle of the lawful judge, developed to avoid manipulation of competences in authoritarian states. Nowadays, as we have seen, the preoccupations of proceduralists all over the globe tend to lead to another perspective, focused on efficiency, which is also compatible with the principle of the lawful judge.

Other critics say that jurisdiction delegation would harm the separation of powers. El derecho constitucional al juez legal. Verwaltungs Archiv, , p. In common law countries, jurisdiction delegation is much more frequent. The role of the judge in public law litigation. Coimbra, , p. Primeiras linhas de direito processual civil. Antonio Cabral entities with some decisional powers like agencies. And even regarding delegation to non-judicial institutions, the objection does not consider the contemporary notion of separation of powers, understood not in an organic sense, but rather in a functional way of attributing basic models of activities to rationalize state organisation.

Der gesetzliche Richter. Thesis, , p. Die Rechtsprechende Gewalt. Handbuch des Staatsrechts der Bundesrepublik Deutschland. Heidelberg, vol. V, 3th Ed. Coimbra, 5th ed.

I, 8th ed. Paris, 2th ed. Salvador, 2th ed. Das Gewaltenproblem im modernen Staat.

Heidelberg, 20th ed. Antonio Cabral systems should be based in this functional approach, focusing on coordination and complementariness. I do not agree. It seems to me that the argument confuses adjudication with jurisdiction or in civil law terms, confuses jurisdiction with competences.

What cannot be subject to delegation is adjudication power, not competences. And one must remember that jurisdiction delegation transfers only the exercise of competences, not the competence itself.

The judge retains adjudication over the case; hence, the judge retains even jurisdiction competence over the case, provided that she can revoge the delegation and perform the delegated legal act herself. So jurisdiction delegation does not mean a denial of justice because it does not represent a permanent transmission of adjudicational powers, but only an episodic cession of the exercise of one or more of its competences.

Oversight as a new function performed by the judge: Almedina, , p. Antonio Cabral Another objection to jurisdiction delegation is that it would somehow harm judicial independence. However, we have seen that the judge does not delegate adjudication, only the exercise of her competence. Nevertheless, this argument raises another interesting debate. If the delegator judge does not loose her adjudicational powers, and not even jurisdiction itself, which kind of functions are left to exercise?

I think jurisdiction delegation promotes an organisational change of judicial activities regarding the case: Litigating socio-economic rights in South Africa: Pretoria, , p. Mandatory relief and supervisory jurisdiction: The South African Law Journal, vol. The what and why of claims resolution facilities. Stanford Law Review, vol. Managerial litigants? The overlooked problem of party autonomy in dispute resolution. Hastings Law Journal, vol. In May , D. Pellegrino World's 50 Best Restaurants, published by Restaurant magazine.

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This principle of adaptability is provided for in the Portuguese Civil Procedure Law for quite some time, allowing the judge a more flexible management of procedural formalities. Is the fisherman granted a waiver to use and commercialize a public good because it is an animal? Related titles. This perspective is very frequent in French legal literature. Direito Processual Civil Brasileiro. The Civil Procedure Rules ten years on.

In fact, there are new and diverse roles that can take part in a procedure, such as that of the amicus curiae, a non-interested third-party.