O julgamento contrário a um precedente e a execução provisória errônea como supostos fundamentos para a propositura da revisão criminal

• Autor(a) principal: Rezende, Mariana Soares de
• Data de Publicação: 2019
• 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/10/11326
• topic: Criminal review; Precedents; Provisional execution; Overruling in mellius; Habeas corpus; Revisão criminal; Precedentes; Execução provisória; Direito Processual Civil; Conduta criminosa - Previsão; Precedentes judiciais; Execução penal; Provas (Processo penal); 340

The study analyses the criminal review institute and its application in the face of the following issues brought in line with the federal rules of civil procedure of 2015: a decision that contradicts a set precedent and erroneous provisional execution would substantiate the proposition of the criminal review action. The diploma expressly regulated a system of formally related precedents, and provided, in its art. 966, item V, that the rescission action (civil) would be applicable in cases in which the final decision could be rescinded when "manifestly violates a legal rule." Such a provision does not exist in the Federal Code of Criminal Procedure. Therefore, it is investigated if a decision contrary to a precedent, erroneous, therefore, would substantiate the criminal review. In addition, by means of habeas corpus 126.292/SP, the precedent that allows the provisional execution of the convicted person in the second instance was established. Consequently, the doctrine projected the relativization of the final and unappealable decision in order to propose a criminal review before a non-final conviction. Based on the analysis of the historical-normative evolution of the revisional institute, its assumptions of appropriateness, its legal nature, its foundations, and purposes, it will be demonstrated that it is possible to handle it in the face of a final condemnatory decision incoherent with an already signed precedent. On the other hand, if there is overruling in mellius, although the rule of material law walks back, the criminal review will not prove to be a useful mean for the application of the new norm that benefits the condemned. It is also Impossible its use based on erroneous provisional execution when the agent is in possession of new evidence and the condemnatory decision has not been judged. In this hypothesis, the best method for putative-probative analysis is habeas corpus. In order to bring solutions to these issues, which involve the synchronization of the precedent model with the criminal review, it is intended to demonstrate how it can be adapted to deconstruct the decision that does not observe the precedents and its restrictions in relation to the provisional execution of criminal conviction.