Federal Constitution

2016-09-04 - 09:43 | News |

Jurisdiction and jurisdictional guardianship are not confused. The first has as main features the inertia, the substitutividade and the Declaration of the right (yes/no) and, this being a function of the State, everyone has the right to which the same is provided. Already the second, according to camera, is one of the ways pelas which the State guarantees protection to those who are holders of a subjective right or other legal position of advantage, or, or everyone is entitled to legal custody, according to the time of monographs of right from the constitutional principle of judicial review, the right this inafastabilidad guardianship should be seized as a right to the appropriate jurisdictional tutelage: the various jurisdictional guardianships should consist of instruments of effectiveness to the proper legal provision, that protect, thus, to the material law injured or threatened with injury and, mainly, that effectively tutelen the fundamental rights. (2009) The principle of effectiveness and the access to justice took contours important today, in front of the crisis established procedural model of our country (delinquency, inefficiency): now, therefore, suscitador of discussions about the social function of the process, functionality, effectiveness and improvement of the judiciary, are looking for avoiding the procesualismo and formalism, who have both served interests escusos (injustice) and both the process of their initial objectives of effective instrument for access to fair legal order and mechanism have distanced themselves effective resolution of conflicts. This is a great opportunity for a scientist according to Paiva, article procedural effectiveness is, therefore, mechanisms that decrease the excessive and unnecessary time of duration of the process.

The effectiveness of the jurisdictional tutelage is a fundamental right, the 1988 Federal Constitution, in its article 5, LXXVIII, established a reasonable time to be picked up, enough I tend to confer safety and practical efficiency to the result (or swifter too, nor slow other). In the same intent, the Pact of San Jose, Costa Rica, to which Argentina is a signatory, establishes, in its article 8, I, that everyone has the right of being heard with those due you garantizabas within a reasonable time by a court or competent tribunal …. Guardianship antecipatoria, one of the forms of jurisdictional tutelage, has an important role in the effectiveness of litigation between the guardianship forms put at the disposal of the operator’s right. This supervision is one of the issues that have most caught the attention of the South American procesualistas lately and was subject to analysis of this article, in which were highlights relevant aspects on the topic, without exhausting the subject, adding more to the discussion.