Standards para a aplicação de precedentes : parâmetros para uma avaliação de compatibilidade entre decisões das cortes de justiça e das cortes supremas

Abstract

This thesis has the objective of investigating the activity performed by the State Appelate Courts and the Regional Federal Appelate Courts when evaluating the compatibility between the appelate decision and the orientation defined by the Federal Supreme Court or the Superior Court of Justice in the disposition of repetitive extraordinary and special appeals in accordance with the article 1040, items I and II of the 2015 Code of Civil Procedure. The research problem consists in indicating as of which parameters the compatibility exam expressed by the procedural rules can be taken in a reasoned manner. Through the adopted institutional perspective the State Appelate Courts and the Regional Federal Appelate Courts are Courts of Justice, whereas the Federal Supreme Court and the Superior Court of Justice are Supreme Courts. Therefore, once the precedent has been adjudicated and published is the responsibility of the courts of origin, if necessary, to adjust the appelate decision to the orientation given by the Supreme Courts in the paradigm trial. In the way the Brazilian legal system is constituted, the Courts of Justice are the ones that decide if the precedent is applicable or not to the case at hand. It is essential then, that the State Appelate Courts and the Regional Federal Appelate Courts are able to perform an appropriate compatibility test between their decision and the precedent. In the realm of legal discourse an interpretative and argumentative operation is developed, whose objective is to define if the appelate decision is compatible or not with the understanding of the Supreme Court. Taking that into account, the standards constitute a control model for the comparison between decisions, in order to avoid that the judicial discretion belonging to the Courts of Justice becomes arbitrary. We start from the assumption that every court decision must be reasoned, and that is why such standards are considered substantiated. Only through well-founded comparison between courts is that precedents will be respected.