O papel dos tribunais de segundo grau no sistema brasileiro de precedentes

Abstract

The Brazilian Civil Procedure Code has completed ten years since its enactment. One of its most cited features is the strengthening of the Brazilian precedent system. The nomophylactic function is predominantly attributed to the higher courts, however, not exclusively. On the contrary, the incident of resolution of repetitive demands and the incident of assumption of competence, instruments for the formation of binding precedents, are especially aimed at the second instance courts, although they also do not have exclusivity for the use of these important guiding instruments. However, there are courts that have neither judged nor admitted any IRDR or IAC since 2020, and many others, with very few exceptions, also underutilize the incidents for the formation of binding precedents. In this work, the determining causes presented by the intermediate courts for the inadmissibility of the IRDR and the IAC were examined. To this end, in chapter one, the statistical-comparative procedural method was used to quantify the production of precedents by each analyzed court and to verify the existence of a connection between the production of binding precedents plus the admission of incidents and the new cases entering the court's collection. Data from state courts, the Federal District court, regional labor courts, and regional federal courts were investigated. There was no direct connection, at least in absolute terms. At the end of the inaugural chapter, a comparative analysis was also conducted between the courts and the respective branches of Justice. Continuing the development of the work, the historical procedural method was used to examine the chronological and legislative evolution, as well as the national and foreign institutes that served as inspiration for the incidents of resolution of repetitive demands, assumption of competence, and unconstitutionality argument. In the third quarter of the work, the method was changed to the inductive approach. The two only courts that did not admit even one incident for the formation of precedent, among the 33 examined, were selected, and the determining reasons for the phenomenon of underutilization of the institutes for the formation of binding precedents by the intermediate courts were thoroughly investigated. The "non-existence of a pending case in the court" is one of the most cited reasons for the inadmissibility of incidents tending to the formation of binding precedents, second only to the "absence of risk to legal certainty". In the final chapter, the factual and legal reasons why the second instance courts are mostly far from fulfilling the duties provided for in article 926 of the Civil Procedure Code were outlined. The issue is cultural, of misguided defensive jurisprudence, and of the insipience of the results that can be obtained by the production of binding precedents, also because the data are not monitored. Proposals were also highlighted for changing the culture of the second instance courts, averse to the production of binding precedents, accommodated to the role of mere applicators of the precedents constituted by the courts at the top of the judicial hierarchy. Finally, the role of the National Uniformization Panel and the assembled appellate panels as bodies for the uniformization of jurisprudence in the special courts in the Brazilian precedent system was scrutinized.