Agravo de instrumento e a taxatividade mitigada do rol do artigo 1.015 do Código de Processo Civil

• Autor(a) principal: Araújo, Thauana Taciana Moraes de
• Data de Publicação: 2019
• Tipo de documento: Trabalho de conclusão de curso
• Idioma: por
• Título da fonte: Biblioteca Digital de Teses e Dissertações da PUC_SP
• Texto Completo: https://repositorio.pucsp.br/jspui/handle/handle/35806
• topic: CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO::DIREITO PUBLICO::DIREITO PROCESSUAL CIVIL; Agravo de instrumento; Cabimento; Taxatividade mitigada; Interlocutory appeal; Advisability; Mitigated taxativity

The interlocutory appeal is the right remedy to challenge interlocutory decisions. Article 1.015 of the 2015 Code of Civil Procedure deals with its advisability and, specifically for decisions given in the standard proceedings and in special rite actions (except for the inventory), presents a list of aggravating matters. The preclusion of interlocutory decisions not included in the list of article 1.015 is deferred to the moment of the judgment of the appeal, in other words, they may be challenged in the preliminary phase of the appeal or counterarguments. The legal nature of the article 1015 is controversial in Brazilian doctrine and jurisprudence, given that many situations not contemplated by the legislator require immediate analysis, such as decisions on jurisdiction. The present academic work aims to explore the evolution of the interlocutory appeal in the Brazilian law, as well as the various doctrinal currents formed about the nature of the article 1.015 list, especially the mitigated taxativity thesis adopted by the Superior Court of Justice (Theme 988). It is not possible to accept the understanding that the list of article 1.015 is exemplary, since the conscious political option of the 2015 legislature was to restrict the scope of the interlocutory appeal. In the same sense, it is not possible to interpret the list of article 1.015 as numerus clausus, because, despite the intention of the legislator, the hypotheses expressly listed are insufficient to protect all issues that depend on an immediate examination by the second instance courts. The position that the list of article 1.015 is exhaustive with extensive or analogical interpretation is also not supported, as there are issues that depend on immediate analysis and which do not find support or any similarity with any of the hypotheses described in quoted article. The mitigated taxativity thesis signed by the Superior Court of Justice defends the interlocutory appeal against the urgency criterion, under penalty of future uselessness of the judgment if it occurs at the time of the appeal or counterarguments. Although the understanding of the Superior Court is not free of embarrassment, it represents, in practice, the best way out of the problem of the acceptance of the interlocutory appeal