O EFEITO TRANSLATIVO NOS RECURSOS EXCEPCIONAIS: PREQUESTIONAMENTO E COGNIÇÃO EX OFFICIO DAS MATÉRIAS DE ORDEM PÚBLICA COM BASE NOS ARTIGOS 1.034 DO CPC E 255, § 5º, DO RISTJ.

Abstract

The present work aims to investigate the issue of translative effect in the context of exceptional appeals. Matters of public order, known as without previous provocation, at any time or degree of jurisdiction, are those that transcend the sphere of interests of private subjects and relate to the correct exercise of jurisdiction, a form of expression of state power. On the other hand, prequestionamento extracted from the expression decided causes, provided within the articles 102, III and 105, III of the Brazilian Federal Constitution, is conceived as a requirement for the admissibility of exceptional appeals. Thus, the present work aims to analyze if higher courts are allowed to examine matters of public order without prequestionamento in the context of exceptional appeals. To answer this question, two doctrinal positions – restrictive and liberal – that seek to offer valid arguments to the presented problem were investigated. The first one consider prequestionamento as an indispensable constitutional requirement, and the higher court cognition as restricted to the order prequestionada. The second one, on the other hand, based on the articles 1,034 of the Civil Process Code, and 255, § 5, of the Internal Rules of the Superior Court of Justice, admits the incidence of the translative effect in exceptional appeals, after the admissibility judgment, applying the right to the case. It is concluded that the second current is the one that best responds to the demands of modernity in civil procedure, allowing matter analysis without provocation, such as absolute nullities, res judicata and prescription, guaranteeing the realization of substantive law and the consecration of procedural instrumentality and celerity.