Navegando por Assunto "Precedentes judiciais"

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Aplicação de precedentes judiciais vinculantes no processo administrativo
(Centro Universitário do Estado do Pará, 2019-06-07) Ferreira, Elter Paulo; Silva, Arthur Laércio Homci da Costa; http://lattes.cnpq.br/5467964111383727; Silva, Adelvan Oliverio; http://lattes.cnpq.br/8410285154382694
The advent of Code of Civil Procedure of 2015 (CPC) brought a new system of judicial precedents inserted in article 927 do CPC which establish that every judge must respect precedents. The judicial precedents effect is changing slowly from persuasion to biding. There are arguments contrary and favorable to precedent application, for instance, independence of the judge on the contrary side and legal certainty on the favorable side. However, regarding Public Administration, which is part of the Democratic State, the same way that the Judiciary is, there is no forecast at on the CPC to application of binding judicial precedents. That way, the object of this study will be the effect of the judicial precedent, especially the binding established in art. 927 of the CPC, regarding to the administrative process, by which the Public Administration expresses its will. This study starts with the delimitation of precedes, its possible effect, as well as clarifies the difference between common law and stare decisis, passing through the analysis of the reasons for application and non-application of precedents and, in the end, the study analyze the possibility of the application of the theory of judicial precedents for the administrative process, and reaches a conclusion on that matter.
O incidente de resolução de demandas repetitivas e a atuação das agências reguladoras: eficácia e impactos jurídicos
(Centro Universitário do Estado do Pará, 2023) Santos, Talita Danielle Fialho Messias dos; Dias, Jean Carlos; http://lattes.cnpq.br/3343295176890460; Araújo, José Henrique Mouta; http://lattes.cnpq.br/0717263241559819; Góes, Gisele Santos Fernandes; http://lattes.cnpq.br/1305423832262115
This master's thesis proposes a study on the impact of the court decisions made in the context of an incident of resolution of repetitive demands (IRDR) on the regulatory agencies, according to § 2o, of art. 985, of the Civil Procedure Code. It is a practical research, with a qualitative approach, having as methodological procedures the bibliographical and documental review. Under the premises of the theory of law, the research had its foundations based on modern legal positivism, having as a theoretical reference the North American author Ronald Dworkin. Regarding the civil procedural aspect, the main authors that served as the basis for the research were Paulo Sarno Braga e Rafael Alexandria de Oliveira, Sofia Orberg Temer e Thomas da Rosa de Bustamante. This paper seeks an investigation into the normative force of judicial precedents, especially the IRDR, given the possibility of the incident projecting its effectiveness to regulatory agencies, according to § 2o of art. 985, of the Civil Procedure Code. The issue is relevant given that IRDR is still a novelty in the legal system, in addition to the fact that the legislator has left gaps in its regulation, raising doubts among law enforcers, with the need to unify the understanding on the subject. To facilitate this research, a case study was used (IRDR n. 0801251-63.2017.8.14.0000 of the Court of Justice of Pará, that questions the fairness of the collection of unregistered consumption of past period by Equatorial (formerly Celpa). Finally, it was found that judicial precedents have normativity, which, however, may vary in effectiveness depending on the type of precedent. In the specific case of the IRDR, although it has binding effectiveness within the Judiciary (horizontal and vertical), by express legal determination (art. 927, III, of the Civil Procedure Code), this effectiveness could not extend to regulatory agencies considering an analysis of law as integrity. Therefore, it is necessary to confer to § 2o of art. 985, of the Civil Procedure Code, an interpretation according to the Constitution and, by corollary, consider its effectiveness persuasive only.
O uso dos precedentes judiciais no brasil: uma análise crítica a partir da teoria do direito e da argumentação jurídica
(Centro Universitário do Estado do Pará, 2014) Lima Filho, Eduardo Neves; Dias, Jean Carlos; http://lattes.cnpq.br/3343295176890460
Gradually, we see the closeness between the legal systems of common law tradition and the civil law tradition, a true fusion occurring between these traditions. In other words, increasingly we see continental law working with judicial precedents and common law allocating matters to be regulated by laws or codes. The Brazil, despite unquestionably being a country of civil law tradition, each day begins to give more importance to judicial precedents, however, apparently without concern for the consolidation of institutions and mechanisms underlying a theory of judicial precedent. In this context and based on the democratic rule of law and concern for the protection and enforcement of fundamental rights of the democratic state and the containment of state arbitrariness, especially the arbitrariness in the Judiciary, we will seek to answer the question of whether the incorporation of a theory of judicial precedents in the Brazilian legal system corresponds to mere procedural technique, which may or may not be present in the legal system, aiming, among others, to speed up the judicial or corresponds to democratic requirement in the rule of law and has significant role in the system legal, independently of legal theory adopted, considering that these always relate to a theory of legal argument, which is anchored to some degree on a theory of judicial precedent. To do this, this paper will be the bibliographic research, among which the analysis of the works of Ronald Dworkin and Neil MacCormick, especially with regard to their contributions to the development of legal arguments in the context of judicial precedent.