ATUAÇÃO NA NORMALIDADE DO DIREITO: POR QUE A ATIVIDADE NOTARIAL NÃO PODE SER CONSIDERADA EXERCÍCIO DE JURISDIÇÃO

Abstract

The constitutional guarantee of access to justice has undergone an important reinterpretation, now having a much deeper connotation than it originally had. In fact, it is no longer enough to guarantee individuals the ability to bring their claims before the Judiciary. On the contrary, it is essential to ensure that they obtain a solution to the problem, whether it is favorable to their claims or not. This reinterpretation of the guarantee of access to justice led to a growing concern to ensure a faster state response to demands. As a result, alternative paths to judicial processes were created, initially called alternative means and later referred to as adequate means of conflict resolution. The institutional framework evolved into a multidoor system, in which each case would have a more suitable path for its solution, with the judicial process being only one of the various means to solve the existing demand. Among the adequate means of conflict resolution, the role of delegates of extrajudicial offices has gained prominence, as they were given the possibility to perform a series of acts that previously required judicial processes. This trend of de-judicialization of some procedures led to the consideration of notarial activity as an exercise of jurisdiction. However, jurisdiction and notarial activity have distinct characteristics. In terms of notarial activity, Brazil adopts a Latin notary system, in which one of the essential characteristics of the activity is operating within the normality of law, meaning the notary only acts in the presence of the parties' consent. This characteristic prevents notarial activity from being confused with jurisdiction, whose primary element is precisely – though not limited to – the resolution of conflicts. On the other hand, jurisdiction has characteristics that are not present in notarial activity, particularly substitutivity, the characteristic in which a judicial ruling substitutes the parties' will; and the formation of res judicata, which prevents the issue subject to a judicial decision on the merits from being re-discussed in the same or another process.