Navegando por Assunto "Precedentes vinculantes"
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Item A força vinculante dos precedentes no CPC/2015: uma análise acerca da sua (in) constitucionalidade(Centro Universitário do Estado do Pará, 2018-06-25) Cruz, Breno José Antonio Góes; Silva, Adelvan Olivério; http://lattes.cnpq.br/8410285154382694; Pereira, BernardoAmong the changes introduced by the new Code of Civil Procedure (CPC / 2015), which came into force in 2016, we highlight the creation of a new system of binding precedents, reflecting a contemporary trend of approximation between Common Law and Civil Law systems. The undeniable valuation of precedents, evidenced mainly in Articles 489, 926, 927 of the CPC, is justified as a measure capable of overcoming a framework of uncertainty and insecurity arising from conflicting decisions, materializing fundamental rights such as legal certainty and isonomy. However, for some, under arguments materially accepted by the Constitution, the new precedent system introduced by CPC / 2015 was built without specific support in the Federal Constitution, when legislating on constitutional matter, which is why part of the doctrine diverges about its constitutionality . In the face of the insurrection, this monograph aims to analyze the main criticisms that the system of binding precedents instituted by the CPC / 2015 suffers, through this, by the theory of Judicial Precedents and by the study of the Control of Constitutionality, in order to finally position ourselves on of the problem.Item 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 BlagitzThe 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.