Análise da aplicação do artigo 489 do Novo CPC

Abstract

Article 489 of the new CPC is a new framework that adds to the free conviction motivated as limits in the conduct of the magistrate in basing his decisions. The new article becomes a north, a mandatory manual – a true duty of magistrates – to be observed. However, this new article clashes head-on with the Case Law of the Supreme Court. How will we consider this question if we consider that the Supreme Court would not have constitutional jurisdiction to examine infraconstitutional matters? Would Excelso Pretorio thus be immune to this new rule? Another point developed in the work was the consequences of the non-observance of the article by the magistrates. The article is clear in determining that the violation of the rules established therein will lead to the recognition of absolute nullity, it could never be sustained the absence of the sentence in the line developed by Professor Taruffo. However, as the reasoning began to include an article for her, if the violation of Article 489 occurs, an immense door will be opened for the management of the rescission action, since we will have the literal violation of the article. It is interesting to note that there are only two judgments before the Supreme Court annulling judgment so in the absence of reasoning. Jurisprudence is all in the sense that even in the face of a poorly founded judgment, the judicial provision was provided and, by reason of the preclusive effect of the thing judged, the loser has gone wrong because he will not be able to rediscuss this absolute nullity in any rescission action! Another point addressed was the possibility of the applicant pointing out the violation to one of the paragraphs and the magistrate to understand that the violation that occurred would not be covered in that item, but in another of the same article. In these cases, we maintain that there is even the possibility of reform in pejus. However, for this, the magistrate must use some new institutes of the new CPC, such as the participatory adversary – here, the duty of warning gains prominence – and the principle of cooperation.