Fenomenologia executiva e revolução tecnológica: uma análise à luz do paradigma racionalista

Abstract

This dissertation analyzes the enforcement and its relationship with technology, covering the issues that concern the mechanisms of operation of judicial organs, linked, especially, to the methods of direct and indirect perspective of the rationalist paradigm and its influence on Civil Procedure. Through the phenomenologicalhermeneutic method, the objective is to understand how this rationality assumption interferes with the use and development of digital systems in enforcement. The research seeks to answer in which conditions the new technologies are and should be applied in the executive procedure, even in the face of the problems arising from the rationalist paradigm. For this, the study is divided into three parts, the first chapter is dedicated to the phenomenological analysis of executive guardianship; its influence on the concept of jurisdiction; binding and nuances with the formation of the State; characters of the executive title; and panorama of the Conselho Nacional de Justiça (CNJ) on executive activity. In the second, we investigate the computer-technological phenomenon from the improvement of the Internet; the digital society and its influence on the legal system; the division between direct executive protection (measures of constriction, especially attachment); and indirect (coercive measures, focusing on atypical media), seeking to report their distinctions and the respective systems and tools that relate to each of the procedures and their potential. In the third chapter, it is analyzed, through the thought of Ovídio Baptista, the presence of the rationalist paradigm on the Civil Procedure; the legal positivism and its influence on the procedural dogmatic; and the idea of technological utopia in the executive procedural system. Finally, it is concluded that, despite the wide use of systems of research and constriction of goods in the exercise of direct executive function, Cartesian rationality is directly related to the problems faced in indirect execution, especially by atypical means, in conjunction with new digital platforms that allow the practice of coercive executive acts.