Action in Strict Sense

Abstract

When studying the actions and civil procedure, we noticed that almost every doctrine begins in referring the matter to the so-called right of action, characterizing it as public and subjective. Certainly, the right of action is public, as assigned indiscriminately to all people, including the unincorporated entity (condo, estate etc...) It is subjective in that it is a power that the law grants a person to satisfy their own interest. May be stressed, however, that all the legal reasoning that involves the study of the right of action arises from the constitutional principle of access to justice, chartered in Article 5.º, XXXV, the Constitution of 1988, which enables us to conclude that the right of action, and public and subjective is, above all, fundamental. Therefore, the ordinary legislator can not edit any normative act that will subtract from the review by the Judiciary any injury or threat to law. It also can be concluded that the fundamental right of action can not be confused with that action covered in our Code of Civil Procedure, which also requires the completion of some conditions (possibility of legal claim, interest and legitimacy to act ad causam) and has elements that identify it (parties, cause of action and application). This is precisely the starting point of this work that, although brief, will cover the fundamental distinction between the guarantee and the right action for a procedural level, then, let us tackle key issues such as, for example, the exact time of the existence of action in the process, the possibility of legal proceedings without action and vice versa, the untying of action with the right equipment that is being postulated, among other.