Comportamento judicial contraditório no processo civil: preclusão judicial, contradição externa e embargos de declaração à luz da boa-fé objetiva

Abstract

This study examines the phenomenon of contradictory judicial behavior within civil procedure, exploring its various types and impacts. The primary focus is on safeguarding the legitimate expectations of parties involved in litigation, particularly concerning prior judicial decisions. Through an analysis of judicial contradictions within the same decision, within the same proceedings, and across different cases, this work seeks to elucidate the implications of inconsistent judicial rulings. From an endoprocedural perspective, this work proposes to apply the concept of preclusion to the judge in its three forms (temporal, logical, and consumptive). Expanding the analysis beyond the boundaries of the same proceeding, this study also examines external contradiction under the principle of "venire contra factum proprium" as applied to the judge. In this context, this work clarifies the distinction between judicial preclusion and “pro iudicato” preclusion, explores the issue of contradiction arising from conclusive omissions and examines the duty to provide reasons for judicial decisions. This work also proposes a reinterpretation of the doctrine and jurisprudence's understanding of the contradiction referred to in item I of Article 1.022 of the Brazilian Civil Procedure Code, rescuing the value of the motion for clarification within the procedural system.