A querela nullitatis como instrumento de tutela do devido processo legal: uma análise jurídica

• Autor(a) principal: Denapoli, Luca Romeiro
• Data de Publicação: 2023
• 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/42017
• topic: CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO; Processo civil; Querela nullitatis; Coisa julgada; Sentença inexistente; Citação; Civil procedure; Querela nullitatis; Res judicata; Non-existent judgment; Service of process

This monograph aims to identify the main situations in which the "querela nullitatis" is applicable in Brazilian law, considering common scenarios in doctrine and jurisprudence. This Roman institution reemerged in Brazilian civil procedure based on the ruling of Extraordinary Appeal No. 97589/SC, where the Brazilian Supreme Federal Court allowed an autonomous action to declare the nullity of judgments in cases of flawed service of process coupled with default, even after the deadline for filing a rescission action. The research was conducted through a literature review, analyzing various doctrinal positions. Initially, the most relevant and preliminary procedural issues were explored to establish the necessary foundations for understanding the "querela nullitatis." Subsequently, a brief historical analysis of the institution and its evolution up to the present day was conducted, along with its relationship with the principle of legal certainty. Then, situations involving non-existent judgments (due to extrinsic or intrinsic flaws) and judgments rendered despite defects in service of process were examined. The conclusion is that the "querela nullitatis" is an action aimed at declaring the absence of res judicata authority, applying in cases of the non-existence of a legal process, judgments with intrinsic defects lacking a dispositif, and judgments prejudicial to a defendant who was not properly served or served in a defective manner. Furthermore, this work addresses absolute nullity, which results in a trans-rescission flaw, and argues that absolute nullities should be reviewable at any time to prevent judicial decisions that violate constitutional principles of due process and the right to a full defense. It also argues that the "querela nullitatis" is a crucial procedural tool, as it can be invoked at any time, does not have a statute of limitations, and is supported by the New Code of Civil Procedure, especially in cases of nullity or improper service of process leading to default