A segurança jurídica dos acordos provenientes da composição dos conflitos em âmbito extrajudicial

Abstract

In postmodern society, the contractual instrument can not only to distribute or circulate wealth, but also, and above all, to promote fundamental constitutional rights such as autonomy of will and the access to justice. In this last purporse, the contract converges with the new perspective of conflict resolution and, at its service, it is placed. This new perspective is based on consensual and opened, legally and jurisprudentially, to the Appropriate Methods of Conflict Resolution, including in extrajudicial scope. This situation motivates, therefore, the delinde of this work around the legal certainty of contracts formulated in the context of Out-of-Court Settlement. Investigating it is the central objective of this research and, from this central objective, for the construction of the above reasoning, initially, the new perspective of conflict resolution and how it was received by Brazilian legislation is explored. Then, based on the Contracts General Theory, interpreted in the light of the constitutionalization of Civil Law, we discourse about the materializing elements of the principles of trust and legal certainty, which constitute the Democratic State of Law. Subsequently, a qualitative analysis of the legal security of contracts arising from Conflicts Out-of-Court Settlement methods is carried out, based on the country's jurisprudential position when ratifying or revising them. Forward, drawing on a summary of the positions discussed, it is concluded that the contractual adoption of such Conflicts Out-of-Court Settlement methods is imbued with legal certainty, in light of the national legal order, the principles that guide it and the jurisprudence of the Superior Courts. However, it appears that they are still not used as much as they could be used and, consequently, they have not yet managed to imprint on the legal, economic and social dynamics, their full potential to contribute to the Principle of Access to Justice. In view of the above, it is then delimited which new paradigms will be assimilated by the formation and by the Brazilian legal activity in favor of the consolidation of legal security and the effectiveness of contracts arising from the Conflicts Out-of-Court Settlement methods. To achieve success in the investigation of the theme under discussion, the inductive approach method was used, associated with the combination of generic types of historical-legal, legal-comparative and legal-descriptive investigation. Furthermore, it used bibliographical and documentary research.