About the cogent procedural rule – of public order – to the rigid procedural norm

a normative proposal in the theory of the legal facts

Abstract

The purpose of this article is to propose a rereading of the cogent procedural rule – associated with the idea of public order, in the sense of questioning and putting to the test the dogmatic that sustains its essence, by adopting the theory of legal facts as a theoretical basis for the understanding of legal regulation. Therefore, the idea of a procedural rule, which is often related as an irredeemable, unavailable, irrevocable, insurmountable situation that does not admit of estoppel and that can be raised in the process at any time, does not find consistent support, neither under the practical nor theoretical aspect. It is noted that certain situations classified as procedural public order can be presented as derogable, available, waiveable, sanitary, admit estoppel and even support the possibility of not being raised in the process at any time. All as a way to guarantee the safety, integrity and coherence of the procedural system. Thus, as a way of adapting the understanding of the content of public order in the civil process to the dogmatic moment of the Constitutional State, a new understanding of procedural rules is proposed, classifying them as rigid procedural rules, hybrid procedural rules and flexible procedural rules, by expecting simplification, clarifying the analysis of certain procedural legal situations attributed to public order.