Superação do precedente judicial no Código do Processo Civil brasileiro: uma análise à luz do contraditório

Abstract

This study aimed to analyze the rules about the overcoming of judicial precedent in the Brazilian Civil Procedure Code, promulgated in March 2015, from the perspective of the constitutional guarantee of adversarial principle, in order to verify if the discipline meets the current contours of that guarantee, favoring the participation of those interested in the understanding modification. To achieve this goal, it was necessary to go through by an initial analysis of the main legal families (civil law and common law), placing the brazilian legal system as an originated exponent of one of them, as well as the current trend of aproach between them, which generates clear effects over Brazil, as it is noticed by the judicial precedent appreciation trend. To understand this trend, its major evidences will be analyzed, as well as the values that boosted this process. Besides that, some basic concepts to understand the precedents theory were presented. In a second moment, was made an analysis of the adversarial principle guarantee, from its earliest contours till the proposal that is best suited to this study, which incorporates to the adversarial principle the right to effectively influence in the decision construction and not to be surprised by that decision. Finally, from the premises that overcoming is possible and promotes the system, since the legal certainty is understood as continuity, and that the new Brazilian Civil Procedure Code seeked to establish a binding precedent system, it was possible to relate the current adversarial principle demands to the discipline of overcoming precedente, by the reinterpretation of the rules on the subject, which, basically concerns about the reputable substantiation, the participation and the possibilty of modulation. In this final stage of the study, it was found that closer attention should have been given to this topic by the reformer lawmaker and some suggestions were made hoping to improve the regulations about the overcoming of judicial precedent