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Legal Nature of the Process – Brief General Theory of Criminal Procedure

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Refer to: MEDEIROS, Flavio Meirelles. Code of Criminal Procedure Commented. https://flaviomeirellesmedeiros.com.br : 2019
MEDEIROS, Flavio Meirelles. Criminal Procedure Handbook. Porto Alegre: AIDE, 1987




To inquire about the legal nature of the process is to question what it represents from a legal point of view, what is the process seen in its content, what is its legal essence, how does it relate to the law (FLORIAN, Eugenio. opus cit. p . 80).

Process-as-contract theory dominated Europe, particularly France, in the 18th and 19th centuries.

The institute that gave rise to it was born in Rome, at the time of the formal process. The Romans did not allow state intervention in their private affairs. In order to be subject to the effects of the judicial decision, it was necessary, beforehand, that the parties had thus agreed.

The form process was divided into two phases: in iure and in iudicio . That first phase ended with the litiscontestatio , with the litigants agreeing to settle the dispute according to the formula. Litiscontestatio was, therefore, a phase or complex act by which plaintiff and defendant agreed to submit the dispute to the judgment of a third party under the terms of the formula. It was, notes Cretella Júnior, a true judicial contract ( CRETELLA JÚNIOR, J. opus cit. p. 374). Complex act , as it involved a triple operation whereby the praetor delivered the formula to the plaintiff ( dare iudicium ), who proposed it to the defendant (edere indicium ), eo ultimo aceitava ( to accept judgment ) (TORNAGHI, Hélio. opus cit . v. I, p. 318).

With the evolution of legal institutions, the theory of process as contract lost all its significance. Jurisdiction, among other principles (inertia, indeclinability, etc.), is informed by the principle of inevitability. The party called to jurisdiction has no way to avoid it. The will of the defendant is incapable of producing any effect on the jurisdiction. Validly summoned, the accused is bound by the process and the binding force of the sentence, regardless of his consent. The presence of the accused is dispensable and default does not disconnect him from the litigation. It is not the will of the party that grounds the validity of the process and the decision, but the law.



Considering it certain that there is no agreement between the parties in order to submit to the jurisdiction, the privatists resorted to the figure of the quasi-contract.

Quasi-contract, according to the Romans, was “the licit and voluntary act that makes its author a creditor of another person, without there having been a prior agreement of will between both” (CRETELLA JÚNIOR, J. opus cit. p. 374 ) . Its definition was also reached, by way of exclusion: “the source of those obligations that did not come from an unlawful act or from a contract, derive from something like a contract, similar to the contract” (TORNAGHI, Hélio opus cit . v . I , p. 318).

The representative of this theory was the Frenchman Arnault de Guényvau, with his work Du quasi-contrat judiciaire . According to its supporters, the notion of a process as a quasi-contract would overcome the problem of lack of agreement and explain the reasons why the process produces obligations for those who participate in it.



According to Couture, the idea that the process is an institution was already slightly marked in Wach’s thought. The same notion appears empirically indicated by the French writers Hariou and Rénard. It was resumed, and with new impetus, by Guasp” (COUTURE, Eduardo. opus cit. p. 63).

Jaime Guasp defines an institution as a set of activities related to each other by the bond of a common and objective idea to which they appear adhered, whether that be their individual purpose, the various private wills of the subjects of those who precede that activity. He verifies two elements throughout the institution: 1st) the common idea; 2nd) the particular wills that adhere to the common idea. Understood this way – it is Guasp who writes – the process is, by its nature, a true institution. The common idea observed in it is the satisfaction of a claim. The particular wills that act in the process all adhere to this common idea:the same the judge in his decision that the actor in his claim, that the defendant in his opposition, try to satisfy the claim that generates the process although each one of the procedural subjects understands in a particularly different way the specific content that in each case it must integrate the satisfaction that is pursued” ( GUASP, Jaime. Civil procedural law. 3 ed. Institute of Political Studies, Madrid, 1943. p. 21-22).

Institution, in the definition of Paulo Dourado Gusmão, is the set of crystallized standards of conduct, which meet a vital or basic social activity or, even, a nucleus of fundamental interest for social life, controlling social actions. And the professor adds: “they persist in the social environment, not suffering in their basic characteristics the impact of social transformations, despite adapting to them” (GUSMÃO, Paulo Dourado de. opus cit. p. 55 ) .

Once the definition of institution has been established, we have no doubt, as regards its nature, to frame the process in the category of legal institution, of institution regulated by law. The process as an entity persists in the social environment, undergoing transformations to adapt to new conditions, without, however, losing its basic characteristics. It is composed of a set of standards of conduct pre-established by law and serves a fundamental interest for social life, which is to make the preservation of legal assets materially possible.

It is important to point out that the conception of the process as an institution, as already pointed out by Guasp, does not exclude the existence of rights and duties in the procedural activity.



It was by criticizing the theory of the legal relationship that Goldschmidt, in his book Der Prozess als Rechtslage (The process as a legal situation), elaborated the theory of the legal situation.

According to this doctrine, qualified as “original and daring” by the author Giovanni Leone (LEONE, Giovanni. opus cit. v. I, p. 220), the subjective right acquires a dynamic vision in the process, transforming itself into possibilities, expectations, perspectives and burdens (CINTRA, Antonio Carlos de Araujo, GRINOVER, Ada Pellegrini and DINAMARCO, Candido. opus cit. p. 24).

For Goldschmidt, the legal situation “is the state of expectation of a person, considered from the point of view of a sentence that is expected in accordance with the law”. It can also be defined as “the set of expectations, possibilities, burdens and releases of procedural burdens of a party” ( apud FLORIAN, Eugenio. opus cit. p. 82).

It was great or the impact caused by the theory of the legal situation in the doctrine. It was, and still is, severe and hot opposition. It is worth traversing, by way of illustration, the criticism that, in 1931, Florian formulated in the doctrine of the legal situation: We do not know what this doctrine, exposed for criminal and civil proceedings, can be applied to the former; but already at first sight, in our opinion, a defect in it is discovered, it is that of having been exposed to the two processes indifferently. In any case, it seems that the content and purposes of the criminal process do not correspond, where true obligations are imposed on the judge and on the parties and they are granted rights, which cannot be ignored without following the corresponding criminal sanction.Florian ends his objections by noting that such a conception strips the process of all its juridical aspect, destroys it and makes it totally empirical: it transforms it into a pure echo case, submitted to the sagacity and dexterity of the parties ( FLORIAN, Eugenio. opus cit. p. 83).


Legal acts and facts

Carnelutti says that a fact is called legal when the law gives it a legal effect. And – continues the eminent professor -, as the virtue of producing legal effects is called effectiveness, the concept is translated into this other: a fact is legal when it has legal effectiveness (CARNELUTTI, Francisco. opus cit. v. I, p . 69).

Legal facts are all those events capable of creating, modifying, transmitting and extinguishing legal relationships.

Hypothesis and legal fact are concepts that deserve to be distinguished. The legal hypothesis is abstract. Its location is in the norm. The hypothesis is the requirement (simple hypothesis) or the set of requirements (complex hypothesis) described in the law, whose fulfillment is required for legal effects to be produced. Legal fact is the realization in the world of hypothesis.

The crime is known as an anti-legal fact, that is, as a fact contrary to the law, to the legal system. From another angle, crime can be seen as a legal fact. It is a legal fact in the sense that it produces legal effects. With the commission of the crime, the right of the State to punish its actor and the corresponding duty of subjection to the penalty is born. It is the birth of the legal relationship of criminal law that links the State, occupying the active position, to the criminal, the latter in the passive position.

Legal facts are divided into legal facts in the strict sense and legal acts. Those are independent of human will (birth, age, death, passage of time). By legal acts, it is understood the acts resulting from human will.

The process begins, develops and ends with successive realizations of facts and procedural legal acts. Death, the passage of time, are procedural legal facts, as they produce legal effects on the process, that is, they give birth, modify and extinguish procedural relationships. The same is true of procedural legal acts, which, observes Mariconde, are the result of exercising rights and fulfilling duties (MARICONDE, Alfredo Velez. opus cit. v. II, p. 48 ) . Examples of procedural legal acts are: the offering of the complaint and prior defense, the interrogation, the filing and receipt of appeals, the questioning of witnesses, etc.

subjective right

The division of law into objective and subjective is well known. Objective law is the norm agendi , it is the set of norms of the legal system. As for the subjective right, it was defined by Ihering as the legally protected interest. Windscheid, in turn, conceptualized it as the power of will conferred by the legal order. These meanings did not withstand criticism – if subjective right depended on will or interest, it would not exist when these elements were absent in its holder – and, today, subjective right is commonly understood as the ability to act assured by the individual. legal system.

We believe that subjective right is not the faculty of acting. If it were a college, how would the right-duty category be explained? Subjective right is the possibility of acting guaranteed by the normative order. When it is only a matter of law, there will be faculty and possibility to act. Being a right-duty there will be no faculty, but only the possibility of acting.

Right to Punish and Right to Freedom

The subjective right to punish, whose existence is denied, among other jurists, by the criminalist Aníbal Bruno (BRUNO, Aníbal. opus cit. v. I, tome I, p. 33. et seq. ) is born with the commission of a crime. Its holder is the State. With the crime, a legal relationship of criminal law is born, linking the State to the criminal, the former in the active position, holding the right to punish, and the latter in the passive position, with the obligation to submit to the penalty.

When we said that the right to punish is born with the crime, we are referring to the right to punish in concrete terms , since the right to punish in the abstract pre-exists. According to Celso Delmanto, while the criminal law is not violated, the right that the State has to punish its possible offenders is only abstract. When, however, there is an effective violation of criminal law, that right, previously only abstract, becomes concrete (Delmanto, Celso. Penal Code Commented . 9th. Ed. Editora Saraiva: 2016, p116).

Subjective rights, in terms of effectiveness, are divided into relative and absolute. Claude du Pasquier proposes the following definitions: “Relative rights are valid vis-à-vis one or more specific persons, while absolute rights exist vis-à-vis everyone” ( apud MAYNEZ, Eduardo Garcia. opus cit. p. 199).

The subjective right to freedom can be seen as both a relative right and an absolute right. It will be a relative right of the citizen if we place the State in the passive position of the legal relationship, which has the duty to ensure the freedom of the citizen. It will be the absolute right of a given person if we envision all other people occupying the passive position.

If someone walks through the square, kicks a soccer ball, smokes a cigarette, writes, he is exercising his right to freedom. The legal order is not indifferent to our desire to smoke a cigarette. We have the right to smoke uselessness, however unhealthy its quality. The passive subject of our right is universal, everyone has a duty to respect our right. And if the taxable subject is not considered universal, then he is the State. The State with the duty to guarantee our right to walk, smoke and write. If someone wants to forbid us to walk in the square, we can appeal either to the Judiciary or to the police power of the nearest Police Station.

The right to freedom is therefore very broad. It can be seen as a complex law, composed of a series of derived rights or, as some scholars may better consider it, a law that is constituted by a series of faculties.

The incidence of the criminal subjective right to punish on the delinquent does not completely exclude his right to freedom. What is completely excluded is only the criminal lawof freedom. The condemned will have the duty to submit only to the penalty and nothing else. Part, and not a small one, of their right to liberty will subsist. Convicted and imprisoned, he will continue to have the right to write, smoke, talk, work, etc. In short: the criminal right to punish excludes the criminal right to freedom, but not the right to freedom, which is broader and which subsists, only suffering a reduction in its content. Hence the reason why, if we want to be more rigorous, when we speak of the subjective right of the innocent accused, we must refer to his “criminal right to freedom” or to his “criminal right not to be punished”, and not to his “right to freedom”. of freedom”, as we do.

legal relationship

In life, social, economic, religious, political relations, etc. Where there are people grouped together, the consequence is relationship. Relations, when regulated by law, rise to the category of legal relations.

Law – says Ferrara – elevates life relationships to legal relationships, providing them with effectiveness, transforming and molding these human relationships into binding legal relationships ( apud GUSMÃO, Paulo Dourado de. opus cit. p. 297).

The legal relationship presupposes the legal fact, that is, it presupposes an event to which the law lends legal effects.

On one side of the relationship is the active subject, holder of the subjective right, and on the other the passive subject, the debtor, obliged to provide.

Legal relationship, in the definition of Paulo Dourado de Gusmão, is the bond that unites two or more people, arising from a fact, an act or a conduct, provided for by the legal norm, which produces legal effects (GUSMÃO, Paulo Dourado de. – opus cit. p. 299).

Our study is interested, as will be seen below, in clarifying the meanings of complex relationships and plurilateral relationships.

As for their content, legal relationships are classified as simple and complex. Simple are those that “consist of a single subjective right. The contraposition of the two subjects is verified in exclusive terms, one of them occupying the active position and the other the passive position. The one who puts himself on the active side is the holder of the subjective right. Complex relationships contain several subjective rights. Persons linked by such a relationship simultaneously occupy both positions. They figure, reciprocally, as an active and passive subject” (GOMES, Orlando – opus cit. p. 128).

As for the number of people participating in it, the legal relationship can be bilateral or plurilateral. It is bilateral when formed by two people, and plurilateral when more than two people. An example of the latter is the credit right in relation to solidary debtors.

The process as a legal relationship

The first jurist to expressly refer to the process as a legal relationship was Oskar von Büllow, in his work Die Lehre von den Prozesseinseden und die Prozessvoraussetzungen (The theory of exceptions and Procedural Assumptions), published in 1868. Externally, the process is a set of acts, it is procedure. It was after Büllow that the investigation of the inner aspect of the process began.

The process is a legal relationship. On one side are the parties with the subjective public procedural right of the action and on the other is the judge with the duty to render jurisdiction. It is a complex, unitary, plurilateral, public, autonomous and progressive legal relationship.

complexbecause the judge and the parties simultaneously occupy the active and passive positions. The judge not only has the jurisdictional duty but, once stimulated with the request for guardianship, he also has the right to render jurisdiction. The parties, in turn, not only have the right to adjudication, but also the duty to submit to it. The legal relationship is still complex because it gives rise to a series of derivative legal relationships. The right of action (and the right of exception is still a right of action) is a complex right made up of various derived rights or, as some may prefer, it is a right made up of a set of faculties. Similarly, the jurisdictional duty of the judge implies a plurality of procedural obligations. The judge’s duty to receive it corresponds to the right to file a complaint. The right to offer prior defense is correlated with the duty to receive it. The same goes for filing appeals, proposing evidence, etc. There are multiple legal relationships that derive from the main one.

The procedural legal relationship is unitary , but not, as they say, because its acts are all directed towards the same end. “A complex of acts directed towards the same end, even when there are several subjects, does not become a legal relationship for that reason alone, unless this term is given an entirely new meaning. A herd does not constitute a relationship just because it is a legal complex of moving things” (COUTURE, Eduardo. Fundamentals of civil procedural law. São Paulo. Saraiva. 1946. p. 96). The legal relationship is unitary, it is only one, for the reason that, seen in its totality, it is only one, only of the complex type.

It is plurilateral because on one side are author and accused, both with the right of action and both with the duty to submit to the jurisdiction. Note that the right of exception is the name given to the right of action of the defendant, that is, the right of the accused to judicial provision.

The legal relationship is public , since it is regulated by a branch of public law, by procedural law. Hence, the subjective rights of its subjects are public.

It is autonomous , not because the legal relationship can exist without the existence of the material legal relationship, as has been stated, because we start from the principle that the legal relationship of criminal law always exists in the process. The procedural legal relationship is autonomous because it is independent of the material legal relationship, that is, for the reason that the development of the former is incapable of influencing the identity of the latter.

It’s progressive. Legal facts are events that create, modify and extinguish legal relationships. In the procedural relationship, what happens is different. Procedural legal facts, when extinguished, simultaneously give birth to new legal relationships. The publication of a judgment is a procedural legal fact that, by extinguishing the right of the parties to a judicial pronouncement, gives rise to their right to file an appeal. Receipt of the appeal (which is a duty correlated to the right of filing) extinguishes the right to file it and gives rise to a new legal relationship linking the parties to the court magistrates, those with the right and those with the duty of the trial. Thus, it is observed that the exercise of rights and the fulfillment of duties in the process constitute legal facts that give rise to new legal relationships with new subjective rights and duties. This is how the process progresses to its end. Differently from what happens in the civil area, in which the procedural relationship ends with the sentence, and in which the execution configures a new procedural relationship, in criminal proceedings, the execution phase is a continuation of the procedural legal relationship initially established.

Main subjects of the procedural relationship

It is interesting to recall, quickly, the disagreement that exists in the doctrine regarding the people who are bound by the procedural legal relationship. For Kohler, the judge does not participate in the relationship. Only the plaintiff and the defendant are bound. For Hellwig, the parties are bound exclusively to the judge. For Büllow and Wach, the relationship is triangular, the parties are bound to the judge and to each other. There were few supporters of Kohler’s conception. The most widespread was the one presented by Büllow and Wach. To us, of these three, the conception of Hellwig seems more acceptable. The legal relationship that binds the winner to the loser, the first with the right to reimbursement of costs and the second with the duty to reimburse, which is normally presented as a bond that unites the parties, it seems to us, even though it is foreseen and located in adjective law,

Other subjects of the procedural relationship

The main subjects of the procedural legal relationship are the judge, the Public Ministry and the defendant. However, those who intend to reduce all the subjects of the relationship to these three are wrong. These, as noted, are just the main ones. All those who have participation in the process, regulated by the procedural law, are subjects of the procedural relationship. Thus, the defender, the witnesses, the experts, the scrivener, the interpreters are also subject… Now, if the defender has rights, and rights distinct from those he represents, if the witness has the obligation to appear in court when notified, if the interpreter has a duty to exercise his function well, these duties and rights are regulated by the procedural norm, there is no way to exclude them from the procedural legal relationship.

Legal situations in the process

One last question that deserves to be asked: are there legal situations in the process? To answer this question, it is essential, first, to define the legal situation . The expression has been used with multiple meanings.

Let’s see what it initially meant and what Carnelutti and Passarelli came to understand by it. According to Betti, the expression legal situation was initially used to mean the preliminary stages in the formation of the legal relationship that give rise to the phenomenon of pendency and an expectation of law. For Carnelutti, the legal situation corresponds to each side of the legal relationship, considered separately, and characterized as one of the opposing interests, converted into a power or a duty. Passarelli, on the other hand, reserves the expression to name preliminary legal relationships, those merely instrumental in relation to others, called definitive ( apud GOMES, Orlando. opus cit. p. 122).

There are multiple meanings that are given to the expression legal status. There is also another, according to which the legal status is a set of legal relationships to which a specific person is subject. Thus defined, one can visualize legal situations within the process.

Procedural legal situations are those bundles of legal relations to which the subjects of the process at a given moment of the procedural activity are linked. As the procedural relationship develops and progresses, with the extinction of legal relationships by fulfilling the obligations contained therein, new procedural legal relationships arise, new bundles of relationships, in short, new legal situations.

The process is a complex of realizations of rights and duties in motion. Legal situations can be compared to photographs of this mechanism. With each new photograph that is taken of this gear, new legal situations are revealed. The process as a legal situation is the vision of the complex of legal relations of the process is a certain moment. It’s a static view.


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