A ação rescisória por violação a precedente judicial

• Autor(a) principal: Naruto, Daniel Feitosa
• Data de Publicação: 2022
• 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/30894
• topic: CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO; Ação rescisória; Norma jurídica; Precedentes judiciais; Res judicata desconstitutive action; Judicial precedent; Legal norm

This dissertation aims to examine the appropriateness of the res judicata desconstitutive action in case of violation of judicial precedent. The Brazilian Civil Procedure Code of 2015 brought, among other innovations, the establishment of binding precedents, confirming that, like other traditional sources, certain judicial decisions are also sources of legal, including with mandatory effectiveness. In addition, the new Code expressly provides for the possibility of rescission of court decisions in which the violation of the legal norm remains. In this scenario, if precedents are a source of law, and are even mandatory in certain cases, the nonapplication of an applicable precedent or the application of an inapplicable precedent represents a true violation of a legal rule. Therefore, if a decision that contains such a defect forming claim preclusion, the res judicata desconstitutive action is a legal remedy capable of correcting it, based on art. 966, V and §§ 5 and 6 of the CPC. In this context, this work seeks to analyze the two institutes correlated to it: the res judicata desconstitutive action and judicial binding precedents. Initially, the res judicata desconstitutive action, its conceptuais plan and appropriate hypotheses are presented, highlighting the changes brought by the 2015 Code. Then, the binding precedent is studied as a legal norm, drawing a parallel between common law, civil law and precedent in accordance with Brazilian law. Finally, the appropriateness of the res judicata desconstitutive action for violation of judicial binding precedent is discussed, analyzing the controversy raised by the possibility (or not) of rescinding a decision based on an understanding signed in a precedent after its final decision - a topic that raises an old controversy in doctrine; in particular, due to the statement 343 of the precedent of the Federal Supreme Court, as well as the need to modify the effects of the new precedent