OS (DES)ACERTOS DO LEGISLADOR NA a??POSITIVA????Oa?? DAS TEORIAS DE ROBERT ALEXY NO DIREITO PROCESSUAL CIVIL BRASILEIRO

摘要

This article deals with the application of Robert Alexya??s legal theories in Paragraphs 1 and 2 of article 489 of the Brazilian Civil Procedure Code. Therefore, the study is structured in two parts. In the first, it introduces the theory of juridical argumentation, briefly, and analyzes the provisions contained in Paragraph 1 of article 489 of the Civil Procedure Code based on the mentioned theory, observing the harmony between the legal text and Alexya??s doctrinal formulations. In the second part, the study presents his theory of fundamental rights, with emphasis on the distinction between rules and principles, maximum proportionality and deliberation technique, and examines Paragraph 2 of Article 489 of the Civil Procedure Code, verifying the total dissonance between the legal text and Alexya??s theoretical basis. In conclusion, at the end, the paper indicates the right and wrong decisions of the Brazilian legislators, pointing out their consequences for the Brazilian Law.