A vedação à decisão surpresa: uma análise comparada da interpretação e aplicação da norma no direito brasileiro, alemão e austríaco

Abstract

The present thesis aims to define the contours of the interpretation and practical application of the prohibition against surprise decisions based on a comparative study with the German and Austrian systems. Introduced into the Brazilian legal system by the 2015 Code of Civil Procedure (CPC/15), the rule contained in article 10 was inspired by foreign law, especially German law. From a formal aspect, the Brazilian legislator was more concise in its normative prescription compared to European legislation. Furthermore, due to the open texture of the language, it is important to seek to provide semantic concreteness to the legal provision. Brazilian courts have been facing the issue and determining the incidence (or not) of the rule in the light of specific cases. Considering the reality of the Brazilian Judiciary, with a large volume of cases, there is a pragmatic need to establish guidelines for the application of the norm. The work has a first general part, in which theoretical premises are established for the study of the prohibition against surprise decisions, investigating its nature and relationship with procedural principles. The second part is dedicated to the study of foreign law. After introducing the legislative history of the norm on the international scene, the German and Austrian systems are examined based on the teachings of doctrine and jurisprudence. The third part analyzes the introduction of the norm in Brazilian procedural law and the treatment given to the topic by national doctrine and jurisprudence. In view of the comparative study, the last chapter presents conclusions and suggestions for objective parameters, consistent with scientific and jurisprudential thinking, for the practical application of the standard.