A (des) necessária via processual para superação do entendimento firmado em “precedente” vinculante e o possível engessamento do Direito

Abstract

Research the appeal system in the 2015 Code of Civil Procedure and possible law rigidity to overrule a settled opinion on binding “precedents” is the theme of this thesis. The object is to present the research in order to verify whether there is in the Code of Civil Procedure any law rigidity to overrule strongly binding “precedents”, especially for the plaintiff to state arguments on appeal and have his/her/its appeal reviewed with the purpose of overruling strongly binding “precedent”. Therefore, it will be necessary to develop a research on: the origin of precedents and their evolution, particularly as regards the history of overruling precedents; the effects of overruling precedents, (retrospectively and prospectively); the scenario of this study in the 2015 Code of Civil Procedure; the role of superior courts; the purpose of the action for relief from judgment and of the claim, which are directly related to the “precedent” binding level in the 2015 Code of Civil Procedure; the essential role of interpretation in Law; and finally, the fundamentals to think and study the essential need for overruling precedents in the legal system. This thesis is justified because the matter is of great relevance to all law professionals and, mainly to the State Ruled by the Law, bearing in mind that the matter is directly related to the Constitutional system (due process of law) and to the party’s right to state his/her/its argument for probable overruling a settled opinion on precedents