ASPECTOS GERAIS DO NEONCONSTITUCIONALISMO E O JUIZ GARANTIDOR NO SISTEMA PROCESSUAL PENAL BRASILEIRO

The Brazilian Criminal Procedure Code of 1941 was impacted by the promulgation of the Constitution of the Republic 1988, mainly due to the publication of an extensive list of rights and guarantees, as well as the presentation of inherent characteristics in the accusatory procedural system. The procedural system establishes limits to the management and probative initiative of the judge, being the object of this research the definition of these limits. In order to do so, it was presented as a first hypothesis the possibility of the procedural system to be fixed by the Constitution and also, as a second hypothesis, the invalidity of judicial acts and legal provisions that attribute to the criminal judge the power to initiate or manage evidence in the criminal process, by virtue of the force normative of the Constitution. The theoretical and investigative development of this research was given by means of a hypothetical-deductive method, presenting general concepts, on which, in a second moment, the hypotheses previously formulated were tested. The research is eminently theoretical and has as theoretical framework the understanding of Aury Lopes Júnior about the founding nucleus of the accusatory criminal procedural system. The hypotheses formulated were confirmed