Coisa julgada dinâmica: limites objetivos e temporais. Entre continuidade, mudança e transição de posições processuais estáveis

Abstract

The present work intends to present a unified model for the juridical treatment of the procedural forms of stability (res iudicata and issue preclusions). For this purposes, it has two fundamental premises: on the one hand, security as legal continuity, a dynamic way to protect the stability without preventing changes in the content of stable acts. On the other hand, the conception of procedural stabilities as chains of binding links operated through the right to a fair hearing. With the combination of these aspects, the role of the argumentation and the exercise of procedural rights gain in importance to the system of res iudicata, reviving the bindingness not only of the conclusion but also of the reasoning of the judgement; and also provides an inter-procedural dimension in order to guarantee harmony and coherence to the whole of juridical relations. By means of this ideas, the present work proposes parameters to verify the objective and time limits of claim and issue preclusions. In regard of the object of preclusions, a bigger role plays the concept of argumentative schemes, linked structures of procedural elements that refer to the exercise of the right to a fair hearing. In terms of the time limits of preclusions, the present thesis focus on establishing a model of review that incorporates the novum without preventing change of content. Therefore it works with compensatory mechanisms to overcome stabilities like, for instance, the burden of argumentation in the proceeding and transition rules edited by the Judiciary.