Cláusula geral de negociação processual e o proibitório da IN no 39/2016 do TST no âmbito do processo do trabalho: uma análise à luz dos princípios norteadores da autonomia da vontade

Abstract

The Brazilian Civil Procedure Code od 2015 aimed at na innovative, cooperative procedural system, aiming at parity of treatment witn regard to the exercise of procedural faculties and rights, as well as the sharp guarantee of the adversary system and full defense. Along with structural changes, among other changes, it inaugurated in the national legal system the viability of atypical procedural transactions, granting the parties, as long as they are capable, greater freedom of self-regulation in rights that admit self-composition within the process, promoting changes in the procedure, through the General Clause of Trading expressed by art. 190. In addition, its sole paragraph assigns the magistrate, ex officio or upon request, to control the validity of such conventions and refuse application if it involves a party in manifest vulnerability. Although Labor Law and the Labor Procedure use Civil Procedure as a subsidiary basis, in cases of legislative omission and compatibility with labor standards and principles, the Superior Labor Court ruled on the inapplicability of atypical procedural business by the harvest labor. In this work, the debate about the possibility of using procedural self-composition in Labor Law will be explored, seeking to verify if the arguments favorable to applicability are erected on principled bases capable of overcoming the protectionist dogmatic barrier of the hyposufficient extended to the labor procedural relationship.