A independência judicial frente à instituição do sistema de precedentes no Brasil

Abstract

The system of precedents was standardized in Brazil in the Civil Procedure Code of 2015. Part of the doctrine finds an obstacle to judicial independence from the normalization of mandatory precedents. The present work has the objective of demonstrating the possibility of survival of judicial independence with the precedent model of stare decisis. For this it deals initially of the breaking of paradigms in the Brazilian law that gave opening to the regulation of the system of precedents. In a second moment it takes care of the reception of the American law in the Constitutions and in the Brazilian law, as well as the main concepts used in common law and imported by the system of precedents in Brazil. It also seeks to understand the conceptions about judicial independence in the country, and faces the problem of the impossibility of interpretation of the courts and lower judges by the advent of binding precedents externalizing that the distinguishing it causes the possibility of interpretation in the application of precedents. In addition, it specific that the precedent model established in the new civil process code must be rethought, because it does not reflect the true meaning of the stare decisis. By means of the qualitative method, sought to understand descriptive data about the use of the institute in Brazil realizing a descriptive research with fulcrum in the analysis of knowledge of the precedents and the technical procedures of investigation were done by bibliographical and documentary research.