A impugnação imediata das decisões interlocutórias não agraváveis de instrumento

• Autor(a) principal: Santos, Ricardo Ribeiro dos
• Data de Publicação: 2018
• Tipo de documento: Dissertação
• Idioma: por
• Título da fonte: Repositório Institucional da Universidade Federal do Espírito Santo (riUfes)
• Texto Completo: http://repositorio.ufes.br/handle/10/10409
• topic: Interlocutory decision; Interlocutory appeal; Writ of mandamus; Irreparable damage or difficult repair; Decisão interlocutória.; Agravo de instrumento; Dano irreparável ou de difícil reparação; Agravo (Direito processual).; Danos (Direito).; Mandado de segurança.; Direito Processual Civil; 340

Investigating the possibility of immediate challenge of interlocutory decisions, especially those that are out of art. 1,015 of the Civil Procedure Code of 2015, is the main driving force of the research conducted. The system adopted by the current legislation, choosing a exhaustive enumeration of the hypotheses of the insterlocutory appeal, and the other appeals only on preliminary appeal (Article 1.009, §1, CPC), leaves without appeal a series of decisions which cause irreparable damage or difficult to repair apart. At the same time, it assumes the risk of invalidating many procedural acts and a waste of cognition in the first instance, if accepted the preliminary raised to the court. In this respect, the research shows that the new system ignores the past experiences - unsuccessful - related to the restriction of the power to appeal to interlocutors. In the same way, it seeks in vain to guarantee the benefits of an oral process, especially speed, with the adoption of the subprinciple of irrecorribility of the interlocutory in a totally deconcentrated procedure. Faced with this reality, and in order to meet the aspirations of a constitutional civil proceeding, doctrine and jurisprudence have debated the means of challenging the party in the face of the failures of the system pointed out. Firstly, the possibility of an extensive interpretation of the clauses of art. 1,015, analyzing, together, how the Superior Court of Justice (STJ) has positioned itself on the issue. In addition, the study on the writ of mandamus against judicial action occupies a fundamental place in the research, in this case, the necessary requirements for the admission of the mandamental route without not rendering without effect the system desired by the legislator, are: (a) illegality (error in procedendo or error in judicando) that is illegal and right; (b) not covered by the res judicata; (c) causes irreparable damage or is difficult to repair. In this last requirement, in some cases it will be presumed (in reipsa) being in others the demonstration together with the plausibility, moving away from the necessity of teratology of the decision. Finally, admitting the possibility of zones of uncertainty, we work with the possibility of using the fungibility of means (in the sense of conversion) between writ of mandamus and interlocutory appeal.