DISCUSSIONS ON THE POWER OF JURISPRUDENCE ON THE NEW CODE OF CIVIL LAW

• Autor(a) principal: Zanon Junior, Orlando Luiz
• Data de Publicação: 2016
• Outros Autores: Luiz, Fernando Vieira
• Tipo de documento: Artigo
• Idioma: por
• Título da fonte: Revista Jurídica Cesumar - Mestrado (Online)
• DOI: 10.17765/2176-9184.2016v16n3p753-784
• Texto Completo: https://periodicos.unicesumar.edu.br/index.php/revjuridica/article/view/4835
• topic: Jurisprudence; Jurisprudential precedents; Juridical norms; Juridical decision; Jurisprudencia; Precedentes Jurisprudenciales; Normas Jurídicas; Decisión Judicial.; Jurisprudência; Precedentes Jurisprudenciais; Normas Jurídicas; Decisão Judicial

The gravitational force of preceding jurisprudential acts on determining factors in juridical decision-taking is analyzed. Criteria are also established with regard to its occurrence in Brazil especially in the wake of the new Code of Civil Law. The above is especially due to a great increase in the importance of decisions, particularly the higher courts, as persuasive arguments for the formation of juridical conviction. Jurisprudence is actually a hierarchical juridical source which is decisive within the Brazilian juridical scenario, ranking below Normative Texts and Juridical Principles. Their relevance does not lie with that which is judged but in the presentation of arguments for the solution of similar cases (structured basis) to improve the launching of juridical decisions. Increase the coherence of Juridical ordering and to preserve the institutional history of law. Further, the New Civil Code provided a different treatment to the gravitational force of Jurisprudence within the Brazilian conditions by changing the functioning of the system in this specific point and requires the attention of professionals with regard to the operationalization of the stare decisis categories, analogy, distinction, exceeding, ratio decidendi and obter dicta. At the end of the investigation, the inductive method was employed; the Cartesian method was employed for data treatment and the final text was composed within the deductive logical basis. Reference, category, operational concept and bibliographical research were employed during the different phases of the research.