Os precedentes judiciais no novo código de processo civil: um caminho para a unidade do sistema jurídico

Abstract

The New Brazil Code of Civil Procedures was approved on March 16, 2015 and it aims to develop an efficient justice. The novel Legislation has introduced, with commitment, the introduction of the judicial precedent principle as well as changes in some renowned subjects. Such principle, which has long been applied in countries with noted tradition in common law, ruptures the opinions of theorists on the convenience of its appropriation in the civil procedure. Thus, this paper aims to analyze the field of judicial precedents with a critical approach to the doctrine and the New Civil Code. First, it presents preliminary considerations for understanding the theory that pervades the judicial precedent principle. Therefore, the similarities between the legal traditions of common law and civil law were approached. This has allowed the principle to be encompassed by the novel civil procedure law as well as a dogmatic approach on the theorizing about judicial precedent. Afterwards, arguments for and against the use of legal precedents were collected to finally verify the attention given to the subject by the legislator and whether the ratification is enough to be used in a judicial precedent system. In order to develop this study, the deductive approach was applied as well as the review of literature and comparative procedure. The research techniques used were documentary and literature, having as theoretical framework the book entitled "Precedentes Obrigatórios" written by Luiz Guilherme Marinoni. Based on what was analyzed in this paper, the benefits of respecting the precedents outweigh any losses; however, it was observed that the performance was insufficient to allow a proper use of judicial precedent when it was verified what had been regulated by the legislator in relation to the subject in the New Brazil Code of Civil Procedures. In conclusion, the law may properly equip the legal doctrine regarding the mode of operation with judicial precedents, otherwise the system designed to improve the adjudication may fail in its intent.