The Duty of Cooperation of the Parties to the Process: The Cooperative Civil Process

Abstract

The procedural legal relationship is strongly marked by the debate of the parties, which hold antagonistic positions in the process, each in defense of their interests, because of the need to obtain the disputed object in court. This article proposes a new vision of civil procedure, more compatible with the idea of the constitutional state, in that touts the need for action of the parties ruled in good faith and the need for cooperation not only with the administration of justice, but with the realization of the ideals of justice. To this end, the parties shall act in a state of cooperation, favoring dialogue and the fulfillment of procedural acts. It is also imperative that the judgment will lead the process to ensure the full contradictory, facilitate the expeditious holding of procedural acts, to notify the parties about procedural acts before issuing any decision that fundamentally interfere in disentangling cause and motivate their widely decisions. The problem lies in defining the extent to which legislation may require this cooperative work part in the process, as each defends antagonistic interests. Starting from a   legal   methodology   based   on   formalism-evaluative   or,   for   some   authors,   the neoconstitutionalism,  the  current  civil  process  is  explained  as  a  means  of  democratic communication proposing the analysis of the process starting with some assumptions, namely, the participation of the parties, criticism of excessive positivism and the concern for legal certainty, due process and the contradictory. One of the main issues surrounding the subject is that he examine the role of the party in civil proceedings, limiting how far it is feasible, from a legal point of view, require a cooperative act the part in order to obtain a just solution in the process even if unfavorable to their own interests. It must be emphasized also the role of the court itself that should be converted from mechanical product resulting from purely logistical previous acts. Contemporary Judges should move away from mere legal syllogism as incompatible with democratic supervision they are to perform in the process.