Navegando por Assunto "Ativismo judicial"

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Análise da estrutura pela qual se desenvolve o ativismo judicial brasileiro no âmbito do Supremo Tribunal Federal
(Centro Universitário do Estado do Pará, 2018-12-14) Xavier, Danilo Pereira; Oliveira, Adriano Carvalho; Peixoto, Carla
The judicial activism of the Federal Supreme Court is a current topic whose discussion goes beyond the legal framework. It is observed that the Supreme has been assuming in the last years important political and social role. Subjects with high moral content, controversial, drivers of Brazilian life, have been decided by this Court. Faced with this fact, it is imperative to study the judicial activism that develops within the scope of the Pretório Excelso, because it is a question of studying the decision-making behavior of the one who has the last word in the interpretation of constitutional norms in Brazil. In this context, the present work will focus on the analysis of some activist decisions of the 21st century that involve themes from the most diverse branches of society. To do so, we will first make an exposition about the elements necessary to understand the theme. Then, it will be shown which role falls to the Supreme within the Brazilian constitutional logic. And, later, some emblematic activist decisions will be analyzed. Finally, it will be noted that these decisions reveal, above all, the intrusion of the STF into the sphere of action of the other Legislative and Executive Powers, putting in check the principle of tripartition of Powers and the functionality of the check and balances system.
Precedentes judiciais vinculantes no Código de Processo Civil de 2015, ativismo judicial e (in) segurança jurídica
(Centro Universitário do Estado do Pará, 2018) Feio, Thiago Alves; Cichovski, Patrícia Kristiana Blagitz
The Civil Procedure Code of 2015 (CPC) introduced profound reforms in the Brazilian legal system, among which is the system of binding precedents, aimed at easing the crisis that the Judiciary has passed since the promulgation of the 1988 Constitution, represented mainly by procedural delays and legal uncertainty. The first one is represented by the number of cases, with 79.7 million cases pending, and by the enormous duration of judicial proceedings, on average of 5 years and 10 months. The latter is evident with a diversity of decisions for similar cases. The study proposes the questioning: is the system of binding precedents of the CPC, as introduced and taking into account the Brazilian context, a tool capable of limiting judicial activism and promoting legal security in Brazil? With the objective of analyzing the suitability of binding precedents to provide legal security in the country. This analysis proposes a comparative study with common law principles, through a bibliographical review of books and articles on the subject, where it is possible to question the importation of this system, without proper adaptation. It is clear that a number of conceptual determinations and structuring are necessary in order for binding precedents to be able to give satisfactory prestige to legal certainty. Regarding the conceptualizations, the use of precedents may raise doubts as to which part of the decision will be linked, which body will be responsible for the specification of that part and which model of application of precedents. This lack of definition can intensify activism in the country by expanding the margin for discretion. With regard to the structures, there are operational gaps, due to the lack of a reporting system in the Brazilian legal system, in order to set up a specialized committee to extract the elements, in a schematic form, from the decision. Another missing structure is the lack of an organized tool for consulting the precedents. Therefore, the system of precedents requires a structural organization and a debate for conceptual definition, aiming to compensate for the lack of culture of respect for judicial understandings, lacking a project to foster respect for and continuity of judicial decisions.