دانلود کتاب آیین دادرسی مدنی، فرهنگ و تناسب

Due process requires that procedures be fair, but fairness is a pragmatic ideal. It provides protection to the individual, but not in a manner that would necessitate the sacrifice of other important rights.
The above sentence was authored by Owen Fiss. Through it, the reader can grasp one of the most sensitive challenges of contemporary civil procedure: its articulation with the possibilities and needs of material reality. This challenge, though indispensable, is to some extent new to continental civil procedure. This is because, traditionally, procedural law has been understood from a purely theoretical perspective. The main concerns were related to its academic and doctrinal discourse, with little attention paid to its conditions of verification. As a result, books could become detached from reality. However, the gap between the two worlds (theory and practice) has at times become an abyss, and the need for rapprochement has become increasingly evident. Otherwise, theoretical and normative promises may simply fail to materialize in reality. The legal process and its guarantees risk becoming nothing more than a fairy tale for a large portion of the population. Is it appropriate to speak of guarantees such as a “day in court” without considering the real possibilities of fulfilling this principle and its underlying purposes? Can the protection of “due process” occur without a cultural understanding of what con stitutes “due process”? This work seeks to offer the reader a distinctive approach to this type of issue. To this end, it adopts a somewhat unorthodox path in understanding civil procedure: viewing it as an inevitably cultural and contextual phenomenon. This perspective underscores its malleability and challenges some of the foundational dogmas upon which it is based. To enable this construction, the first chapter is dedicated to providing a brief overview of the recent history of the continental process. In doing so, it presents some of the most relevant pillars of its formation, as well as its main challenges and paradoxes