Modulação, sob o aspecto temporal, de acordo com 0 artigo 927, 30, do Código de Processo Civil de 2015

• Autor(a) principal: Simionatto, Yrlanna Borges de Carvalho
• Data de Publicação: 2020
• Tipo de documento: Dissertação
• Idioma: por
• Título da fonte: Biblioteca Digital de Teses e Dissertações da PUC_SP
• Texto Completo: https://repositorio.pucsp.br/jspui/handle/handle/32601
• topic: CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO; Controle de constitucionalidade; Princípio da segurança jurídica; Principio da proteção à confiança; Eficácia temporal das decisões judiciais; Efeitos prospectivos; Técnica da modulação; Control of constitutionality; Principle of legal certainty; Principle of the protection of legitimate expectations; Temporal effectiveness of judicial decisions; Prospective effects; Adjustment technique

This work is dedicated to the study of adjustment, regarding their new facet and considering a temporal aspect, according to article 927, 3rd paragraph, of the 2015 Brazilian Code of Civil Procedure. It is with regard to a consistent technique in the possibility of manipulating or calibrating the effectiveness ofthe normative burden ofjudicial decisions over time, in the name of the principle of the protection of legitimate expectations, a subjective dimension from the canon of legal certainty. Judicial decisions, once playing a guiding role, are embodied in conduct guidelines for the jurisdictional, being law in its meaning as the laws, interpreted by the courts, in the light of the doctrine. Therefore, having recognized their normative burden, they, to some extent, become legal provisions, spreading their effects beyond the concrete case they solve. The new facet for an adjustment is broader than the one found in article 27 of Law n. 9868/99, restricted to the concentrated control of constitutionality, meehanism where the origins for the institute of adjustment can be found. However, even the older facet goes beyond its express provision, encompassing diffuse control. Moreover, being an institute that intends to deliver constitutional principles, an adjustment does not necessarily depend on any express provision, nor is it limited to it. Also, unless there is an adjustment, both the ehange of jurisprudence and the precedent have a naturally retroactive vocation. Flhus, such an institute grants flexibility to the matter of decision effects, given that they are temporally ex tunc, ex nunc or pro futuro. Nonetheless, the usage of this technique, given a concrete case, must be based on the Constitution. Regarding the legal cases of adequacy, the legislator expressly provided in the already mentioned 3rd paragraph, as a general rule, the possibility of an adjustment in the (i) alteration ofthe majority opinion ofthe Federal Supreme Court and ofthe superior courts and (ii) alteration originating in the trial of multiple elaims on the same point of law and decision of multiple appeals on the same point of law. However, we believe that it is possible, in theory, to modulate the effeets of any situational change, provided that the previous situation was able to generate confidence and that the necessary context exists (z reasons of legal certainty and social interest) to the application of the technique, which character is of exceptionality. lherefore, not only the decisions made by the higher courts, but also the ones made by the high courts can be cases ofreliable conduct, being their jurisprudence consolidated, predominant, pacified, iterative etc. Moreover, in all items from article 927 of the 2015 Brazilian Code of Civil Procedure, there is the possibility of an adjustment, if applicable. Having clarified definitions, undamentals, origins and cases regarding adjustment, in the final part ofthe paper we Will expose, in a more practical bias, characteristics (in particular the types prospective-prospective/purely prospective and almost prospective), "preventive" techniques Gudgment-warning and signaling), transition rules, proeedural features (around competence and the interested in the adjustment) and criteria related to the application of the teehnique, according to the 2015 Brazilian Code of Civil Procedure, concluding towards being a flexible institute regarding the possibilities of effects manipulation over time, but exceptional as to its usage, result of a dense foundation and supported by constitutional principles