Considerações acerca da relativização atípica da coisa julgada no âmbito cível

Abstract

The relativization of res judicata is one of the most discussed topics in contemporary civil procedure law. The phenomenon of relativization of res judicata according to the doctrine, can occur in a typical (under law) or atypical way (not provided for by law). The objective of this monograph is to conclude either for possibility or for the impossibility of relativizing the res judicata by atypical means. For solving this problem we use the legal-instrumental-dogmatic method and, secondarily, the legalepistemological method. Accordingly, after reviewing the epistemological bases of res judicata, we present important doctrinal arguments about the theme, in order to reach a conclusion on the feasibility of atypical relativization of res judicata when it’s in conflict with other fundamental rights and guarantees or when it’s legally absent. Therefore, since there is no absolute right, final judicial decisions ridden by vice of unconstitutionality may be challenged by autonomous lawsuit called querela nullitatis, derived from technique of balancing values. On the other hand, judicial decisions which do not admit further appeals, but have the vice of legal absence can be overcome by the filing of a new lawsuit with the same subject, eliminating the need for querela nulillitatis.