A CONSTITUCIONALIDADE DO USO DOS PRECEDENTES NO NOVO CODIGO DE PROCESSO CIVIL

Abstract

The present study aimed to analyze the constitutionality of the system of precedents established with the advent of the new Code of Civil Procedure. The new institution codification binds binding precedents signed by courts and superior courts, so that magistrates of lower courts are required to apply the agreement signed, and may even dismiss the application in liminal order in those cases that do not require procedural instruction. Initially, an analysis was made of the most common procedural systems in Western legal systems: common law and civil law. Then, a parallel was performed between the two systems. Next, the precedents, as they are contained in the new Code, have been analyzed in detail, with special emphasis on doctrinal constructions regarding the precedent. Subsequently, the subject of constitutionality of the precedent with binding force was the subject of debate, at which time it was sought to analyze all the main arguments to substantiate and the thesis of eventual unconstitutionality. In order to do so, a study was carried out regarding the control of constitutionality and its position in the Brazilian legal system, in order to seek the analysis of the arguments of those who defend the unconstitutionality proper, and, at the end, to conclude that the new precedent system does not violate the Constitution.