TEORIA DOS PRECEDENTES JUDICIAIS NO DIREITO BRASILEIRO: UMA ANÁLISE SOB A ÓTICA DO ART. 489, §1 º, V, DO CPC/15

Abstract

2015 Brazilian Civil Proceedings Code proposes standardize judicial decisions. Development scenario of such a claim was marked by lottery jurisprudence and the consequent jurisdictions’ dissatisfaction, who worked in the Justice System without minimum guarantees that should be attributed to them: legal certainty, predictability and isonomy. As a result, precedent appreciation was the protagonist to achieve such objective. It substantially alters the Law application, which, from then on, began to deal with the binding character of judicial decisions contained in CPC/15 article 927. Thus, several provisions from the Code reflect the institute prevalence, and therefore indicate that the legal community needs to know the practical aspects for the correct use of precedents, and above all for the institute to serve the purposes that were assigned to it. In association with this, CPC/15 article 927 seeks to analyze CPC/15 article 489, § 1, V, which is a corollary to motivation principle of 1988 Federal Constitution’s article 93, IX judicial decisions as the guiding device for the precedents’ operationalization, which, contrary to what some critical positions claim, has increased the duty of reasoning and interpretation, and not suppressed it. Thus, a precedents’ system insertion in the legal system is not a measure capable of justifying the mere repetition of menus, theses, and precedents of the higher courts. In turn, this does not invalidate the institute’s proposal, but warns that it is essential to exercise an adequate foundation for the system management. Social relations are dynamic, law is dynamic, and therefore precedent is not equivalent to repetition.