Fatos incontroversos e que independem de prova sob a perspectiva do recurso especial e a formação de precedentes pelo STJ

Abstract

The dialogue between civil law and common law is fundamental for the effective protection of rights, through the influence and adaptation (according to the culture and particularities of each system) of methods, institutes and techniques. From the perspective of the special resource, every question, whether in fact or in law, tends to be preponderant. The difference that matters for the condition of admissibility and judgment of the merits of the special appeal (and, therefore, non-incidence of precedent 7-STJ) is how much the common element of the uncontroversial, whether through the hypotheses of facts that do not depend on evidence (pure facts), or by fixing the instructive facts (object of evidence), are illustrated in the appealed decision. Regardless of the understanding of the binding or persuasive character attributed to the precedents and summary statements of items I to V of art. 927 of CPC/2015, it is possible that the essential or relevant uncontroversial fact, pure or instructive, in addition to the conclusion (legal consequence) not only influence, but be an integral part of the determining basis of the decision that forms the precedent. The benefits of such a measure would be: a) a form of controlling the risks of factual generality that would give rise to the mistaken application of the precedent; b) facilitate the demonstration of the distinghishing of the legal issue of its case in relation to the precedent whose mistaken application could bring it harm; and, finally, c) contribute to the development of the unity of law.