Precedentes : uma análise sobre a eficácia do sistema bifásico de valoração do dano moral e do tema repetitivo 176 do STJ no poder judiciário brasileiro

Abstract

The present research proposes to analyze the effectiveness of the precedent system from the perspective of Brazilian forensic practice, because, despite all the legislative changes made, there is still a great jurisprudential dispersion existing between the guidelines of the STJ, which represents the vertex Court in matters of infraconstitutional federal law, and the Justices of the first degree. In view of the choice of theme and with a focus on the development of this work, the problems to be solved are: what is meant by precedents and how are they classified according to their effectiveness? How do the precedents embodied in the judgments issued by the Superior Court (STJ) influence the first instance instances? More specifically: have the application of the biphasic method, as well as the Repetitive Theme 176 developed within the scope of the STJ, been observed in the Courts of Justice of Maranhão and São Paulo? When developing this study, approaches to the following themes are proposed to reach the appropriate conclusion to the problems presented. Initially, according to the bibliographic study developed, the question regarding the Brazilian legal system will be analyzed in order to achieve a distinction between civil law and common law. Continuous act, bringing to the comparison the doctrine of precedents applied in the national field, its nuances will be specified, as well as the tools created for the implementation of this legal doctrine in the national legal system. In addition, the precedents chosen with the purpose of understanding the biphasic method of measuring moral damages (persuasive precedent) and the matter that involves Repetitive Theme 176 of the STJ (binding precedent) will be exposed. Finally, the due investigation will be carried out on the websites, measuring the number of sentences in the scope of the selected courts that make use of precedents, so that the transformative potential of the institute of precedents is finally recognized after seven years of its advent in the CPC. 2015, or to confirm whether legal uncertainty and the dispersion of understandings about similar cases still persist. To achieve this goal, the quantitative research technique was used, through the use of a statistical tool by probability sampling. In the end, it will be verified that the system of precedents still suffers from the lack of effectiveness in the brazilian judiciary.