THE “NULLITY OF ALGIBEIRA” AND ITS CLAIM BY THE PARTY TO WHOM IT BENEFITS: ABUSIVE AND LESIVE PROCESSUAL STRATEGY OF PROCESSUAL GOOD FAITH AND SUBSTANTIAL CONTRADITORY

Abstract

ABSTRACT: OBJECTIVES: This research aimed to identify the legal basis for the nullity of algibeira to verify its admissibility or not in the Brazilian legal system. METHODOLOGY: The research was developed by the deductive method, in which it analyzed theses and general legal norms to draw an absolute conclusion, namely, that the nullity of algibeira has a normative role in the fundamental procedural norms. As material, it used Brazilian and foreign bibliographic references, which deal with the matter in detail, and court documents that judged matters and cases involving the nullity of algibeira. RESULTS: The research identified the normative subsumption and the fundamental thesis for the removal of the power of art. 278, caput and paragraph, of the Code of Civil Procedure, to prevent the allegation of defect to the public interest at any time and instance of the process. CONTRIBUTIONS: The research systematizes the arguments necessary to justify the ineffectiveness of the nullity claim by the party that does not claim absolute nullity, although it has the right to claim at any time, if it has remained inert throughout the process as a strategy to harm the other part. The systematization of this thesis collaborates with the realization of the fundamental norms that oblige the formation of a procedural legal relationship based on honesty and cooperation between the parties.