Dissertação
O embate entre procedimentalismo e substancialismo em tempos de sociedade em rede: o exemplo privilegiado do incidente de resolução de demandas repetitivas - IRDR
Fecha
2021-12-20Autor
Pistoia, Gabriel Silveira
Institución
Resumen
The current Brazilian Civil Procedure Code, which came into force in March 2016,
inaugurated a “system” of respect for mandatory judicial precedents. In other words,
there is a dogmatic model in Brazil that recognizes that certain decisions, coming from
certain Courts, have the quality of a legal norm and, therefore, must be observed.
Therefore, fleeing the traditional source of Roman-German law (the Law), there is the
exercise of jurisdiction as a key element in the construction of legal science. It turns
out that not all decisions have the status of a legal standard. Observing the cut
proposed in this study, it focuses on the figure of the Incident of Resolution of
Repetitive Demands - IRRD as an object of research. Recognized by legislation as
mandatory judicial precedent, the incident under review has the quality of a legal norm,
being instituted, processed and judged in the Regional Courts. It must be stressed that
mandatory judicial precedent is, first of all, a decision. Traditionally in the act of
deciding, the magistrate needs to solve a specific problem, presenting its solution at
the conclusion of the decision. This solution, however, must be accompanied by
justification, that is, a general legal rule is applied that serves as a basis for solving the
concrete problem, giving rise to an individual legal rule. In any decision, therefore, it is
possible to identify the existence of a general legal norm - contained in the grounds -
and an individual legal norm - contained in the conclusion. In the case of mandatory
judicial precedents, including the Repetitive Demand Resolution Incident - RDRI, the
legal basis is its point of manifestation. This general legal rule that is found in the
reasoning of the decision is built by the Regional Court from the examination of a
specific case and that will serve for future and similar cases. The mandatory judicial
precedent arising from the Repetitive Demands Resolution Incident - RDRI arises from
an induction reasoning. The reasoning by induction is important, since the mandatory
judicial precedent can only be invoked if there is a similar relationship between the
cases. In addition to the clear retrospective character (it is produced from a past case),
there is also a clear prospective character (as it will serve to solve future cases). In this
sense, from a hermeneutic perspective, it is investigated how the Proceduralist and
Substantialist theories provide the necessary theoretical substrate for the investigation
and found the condition of validity to legitimize the formation of mandatory precedents
through the Resolution Incident. Repetitive Demands – RIRD, whose general linkage
characteristic is elementary for the rationality of the law, coherence and integrity.