ANÁLISE ACERCA DO PREQUESTIONAMENTO FICTO NO ÂMBITO DO STJ

Abstract

Prequestioning is seen, jurisprudentially, as one of the admissibility requirementes of exceptional resources and this has been required since ancient times in Brazil. However, there has been no express provision in this regard since the 1967 Constitution, which has raises doubts about the constitutionality of its requirement.It appears thar there is no unanimous understanding, neither in doctrine nor in jurisprudence, about what is meant by prequestioning, how and when it is achieved, but there is a dominant understanding. This work exposed the most diverse understandings about the prequestioning for greater clarification on the subject. The problem that was found is that the jurisprudential understanding of the STJ has Always been contrary to the acceptance of the fictitious prequestioning and it was intended to verify, through a research of jurisprudence, if there was a change in this understanding with the entry into force of CPC/2015 and if the jurisprudential behavior on the subject by the STJ can be seen as na obstacle to the effective jurisprudential provision. CPC/2015 in article 1.025 brought the possibility of fictitious prequestioning when, despite opposition to declaratory embargoes, the court of origin remains silent when analyzing the substantive issue. The STJ’s jurisprudential understanding prior to the entry into force of the aforementioned legislation was in the sense that the occurrence of this kind of prequestioning was inadmissible. After the adoption of CPC/2015, the understanding of the mentioned court was modified, accepting the fictitious prequestioning, but not in the exact terms of the legal provision. The fact is that the STJ’s continues to use of Precedent 211 reiterated, saying that the special appeal related to the issue that has not been considered by the court of origin is inadmissible, despite the opposition to declaratory embargoes. Apparently it is a contradiction crystallized in the jurisprudence of this superior instance that, even accepting the fictitious prequestioning, perseveres to apply this summary, which is in clear divergence with the provisions of article 1.025. In practice, the jurisprudence of the STJ was consolidates in the sense that it is necessary for the party to reasonably raise a violation of article 1.022 so that this higher court can provide the effective jurisdictional provision to analyze whether the factual prequestioning remains to be configured, which is considered a defensive jurisprudence. It is concluded, then, that there is an obstacle to effective jurisdictional provision, considering that the aforementioned requirement that remains crystallized in the STJ is a true exacerbates formalism that has no legal provision in this regard.