Da atribuição de autoridade ao precedente judicial no processo civil brasileiro : o guardião da lei federal e os juizados especiais civeis

AUTOR(ES)
FONTE

IBICT - Instituto Brasileiro de Informação em Ciência e Tecnologia

DATA DE PUBLICAÇÃO

17/12/2011

RESUMO

The work analyzes the attribution of authority to judicial precedent on brazilian civil procedure, focusing on decisions of brazilian Superior Court of Justice and its influence concerning state small claims courts, in order to demonstrate that this microsystem can t be distant from the precedents established by that court involving interpretation of federal statutes. The study is based upon doctrinal, legal and case law. The work begins with an analysis about judicial precedent, its concept and dimensions, as well as its application within the common law, the doctrine of stare decisis, which gives obligatory authority to judicial precedent, and the techniques used for the application of binding precedent in that system, what is done seeing as such study facilitates comprehension of authority assignment to precedent. Then it analyzes the approach between the legal systems of common law and civil law, focusing on judicial precedents and the prestige afforded to them in each of the systems throughout history, pointing out the different ways to look at the judicial function in both contexts and the changing role of the judge in civil law. Considering this legal family, it examines the increasing allocation of authority to the judicial precedent in brazilian civil procedure, highlighting some of the mechanisms provided with such quality. After, it studies the brazilian Superior Court of Justice, and its importance as a guardian of the federal law, which shall exercise its nomofilattic, dikeological and paradigmatic functions, particularly when deciding the special appeals submitted to its judgment. In this context and because of the assignment of authority to judicial precedents, there is a vertical interpretation of federal law. Thereafter, it addresses the question of interpretation of federal law in state small claim courts. It is emphasized the establishment of courts as a way to mitigating restrained litigation. It underlines the importance of federal law interpretation in this context, drawing up an overview of the main concerns about the issue: the standardization of rules interpretation under state level, standardization at national level, uniformity between courts of different states, convergence between the understandings adopted by those courts and the precedents from the Superior Court of Justice and the concern about federal issues still not considered by the referred Court. It briefly examines each of the situations, making the comparison with the techniques used in another small claims courts, highlighting the question of setting new precedents by the Superior Court . The problem involves access to the court, something that usually is not feasible in respect to decisions of the state small claim courts. It emphasizes the importance of Superior Court of Justice precedents to fix the last word on the interpretation of federal law also for the small claim courts. Considering all the analysis undertaken throughout the work, it ends with a proposal for re-reading of admittance to the special appeal in order to allow such appeals against decisions issued by the small claim courts.

ASSUNTO(S)

recurso especial processo civil juizados especiais cíveis jurisprudência direito civil civil procedure jurisprudence civil law civil special courts

ACESSO AO ARTIGO

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