Aspectos controvertidos das exceções de impedimento e suspeição do juiz no processo civil.

Abstract

The impartiality of the judge is a fundamental right of the process. For the joust judgement of a cause isn't only necessary the specific competence and jurisdiction for a certain process, it's necessary that the judge examines the cause as a disinterested third. The partial jurisdiction is unacceptable because it affects not only the party that was injured with this judgement defective, but it's affects also every the society that was violated for one partial jurisdiction. Because of this, the law requires that the judge has no link with the cause. For to avoid, then, a defective and partial judgement, the Code of Civil Procedure provides, in articles 134, 135 and 136, several cases in which the magistrate will become unable or suspect to the judgement. Thus, the impediment and the suspicion become predominant infraconstitutional instruments to ensure the impartial supervision of state-court in civil proceedings. By side to the defence and counterclaim, it is a form of response of the defendant, but also can be used by the author. Despite the importance of this defence instrumental, the exceptions of impediment and suspicion is still a subject little discussed by national doctrine. The Code of Civil Procedure is also silent and even contradictory regarding several of its points, which brings differences in the doctrinal and jurisprudential regarding many of its aspects. This study aims, through a literature search and case law, exposing the organized and systematic manner, the general characteristics, the main aspects, the legal assumptions, and the biggest points of contention and controversy about the exceptions of impediment and suspicion of the judge. The objective is, too, to show the predominant position regarding these divergent points. In the end, it appears that the Brazilian Code of Civil Procedure should be more clear regarding some points of exceptions, such as the type of attorney that should be granted to oppose these exceptions, the date for its initial filing, the consequences of acts practiced by judge prevented or suspect, to prevent the judge who has worked as an auxiliary of the justice in the cause, among others. The method used was the inductive.