Navegando por Assunto "Precedents"

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Acesso aberto (Open Access)
Precedentes vinculantes no modelo constitucional de processo
(Universidade Federal do Pará, 2021-08-18) PAIXÃO, Shayane do Socorro de Almeida da; COSTA, Rosalina Moitta Pinto da; http://lattes.cnpq.br/5469957203750291; https://orcid.org/0000-0002-3673-6912
This work aims analyze the binding precedents in the from the Brazilian Civil Procedure Code – CPC/2015, especially the precedents of the Supreme Court (STF). The formal linkage of the precedents is investigated, based on their provision in the Code of Civil Procedure, seeking to understand how this formal provision can reveal the defense of the linkage only by a criterion of authority of the Court that issued the decision. This criterion of authority, although important, should not be analyzed in isolation, under penalty of resuming arguments that refer to legal empiricism, a theoretical current that offers subsidies for decisions devoid of legal legal foundations. Furthermore, considering the reading of the process necessary from a constitutional model, the concern with the participation of subjects should be given special attention when analyzing the precedents of the Supreme Court. In the work, precedents are considered as principles that operate from their gravitational force, which leads to their gradual application, according to formal but also material criteria, so that the Court's authority is only one of them and not the only one. The deliberative practice of the STF is a determining point in analyzing the gradual strength of precedents.
Acesso aberto (Open Access)
O tribunal deve manter a sua jurisprudência íntegra, e agora?: a integridade dos precedentes como garantia do direito fundamental de acesso à justiça a partir do Supremo Tribunal Federal
(Universidade Federal do Pará, 2022-08-23) HOMCI, Arthur Laércio; GÓES, Gisele Santos Fernandes; http://lattes.cnpq.br/1305423832262115; https://orcid.org/0000-0002-2104-2889
The objective of the present study is to answer the following question: can the obligation of the jurisprudence integrity attributed to Brazilian courts may contribute to the guarantee of the fundamental right of access to justice? The central hypothesis of the research is that one of the elements able to guarantee the fundamental right of access to justice is the performance of the Brazilian courts from the observance of the integrity of their jurisprudence, according to the precedental jurisdiction that is long for in Brazil. The research is justified, as we still lack an investigation that applies the legal value of integrity as a possible solution to the problems of our community regarding access to justice. To reach the general objective, four chapters are elaborated, each one corresponding to a specific objective of study. In the first chapter, we demonstrate how the precedent movement is happening in Brazilian law, stating that our tradition, historically more identified with the civil law tradition, does not constitute an impediment for this movement, but imposes several challenges to the consolidation of law in a precedent perspective. In the second chapter, we expose how the Brazilian normative system is regulating the application of binding precedents, especially from the 2015 CPC, passing by some basic concepts of the precedent theory, and we analyze how society participates in the formation of binding precedents. In the third chapter, we investigate the role of integrity in this scenario, we seek to justify the insertion of the expression “integrity jurisprudence” in the wording of article 926 of the Civil Procedure Code, and we sustain that Ronald Dworkin's theory of law as integrity can be a form of interpreting the meaning of this expression and its importance to our legal system. In the last chapter, we established two objectives: to expose the faces of access to justice in contemporary jurisdiction, and to assess whether the Federal Supreme Court, particularly in trials involving issues related to access to justice, considers the principle of integrity as a relevant value to our legal system. In conclusion, we discourse how the Supreme Court practice should be a relevant guide to the performance of all Brazilian judges and courts. The research transits among deductive methods, from the bibliographic analysis of the authors studied, and inductive methods, based on the analysis of the STF precedents and its concrete application. The objective of the methodology used is to accomplish a scientific research, seeking in the theory of law, in the theory of precedents and in practical experiences, the answers to the presented problem.