Autonomia da ação
Autor | Manoel Antonio Teixeira Filho |
Páginas | 73-73 |
Page 73
Conforme procuramos demonstrar no Capítulo anterior, dentre as várias teorias doutrinárias concebidas para definir a natureza jurídica da ação acabou por prevalecer, em nosso meio, a do direito abstrato, ou seja, a que reconhece autonomia à ação, em cotejo com o direito material.
Conquanto, de modo geral, o indivíduo invoque a prestação da tutela jurisdição, com o escopo de promover a defesa de um direito material (ou substancial), lesado ou na iminência de sofrer lesão, isto não significa que somente haverá direito de ação se existir um direito material subjacente. A prevalecer esta vinculação da ação ao direito material ficaria difícil explicar, nos casos em que os pedidos do autor são rejeitados, qual seria o direito que lhe teria permitido ingressar em juízo, se o direito material alegado não lhe foi reconhecido
A ação traduz, pois, um direito abstrato, cuja existência não se vincula, necessariamente, à presença de um direito material. A ação declaratória negativa, a propósito, surge como uma das mais expressivas demonstrações da...
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