A violação do princípio da inafastabilidade da jurisdição pela taxatividade do cabimento do recurso de agravo de instrumento no código de processo civil

Abstract

The filing of the appeal brings the initial idea of the principle of due legal process as a precondition for the unfeasibility of the jurisdiction when not touching the taxation of the list of art. 1,015 brought to the New CPC. In this regard, the study is based on exploratory and descriptive research, which uses the hypothetical-deductive method, through which, using bibliographic materials, in short, legal articles, to confront situations in which the Judiciary it has been validated by the legislator's behavior in turning the instrument's appeal into a definitive list and, subsequently, opening presuppositions for a slightly more extensive interpretation of the list of art. 1,015. The study aimed to enter the discussion on the debate about the possibility of extensive interpretation of the role of art. 1,015 or even the maintenance of the list by the principle of taxation already imposed by the legislator when the New CPC came into force. At first, this work went through the history of the appearance of the appeal in Portuguese and Spanish law and its introduction in the Brazilian Civil Procedure Code. Therefore, there is the importance of the appeal of an interlocutory appeal, which has the objective of interposing interlocutory decisions of the first degree in order to guarantee the manifestation of the party to the process through the appeal, preserving legal security. It appears that the legislator, when resuming the taxation of the interlocutory appeal in art. 1.015, raised questions about the possibility of extending it, considering conflicting situations, such as competence, among others that were not considered in the list of the article. As there were doctrinal and jurisprudential divergences about the extension of the list or not, the STJ created the thesis of mitigated taxativity, along the lines of Repetitive Theme 988 in 2018, when it decided to expand the list of art. 1,015 in exceptional and urgent cases. However, the Superior Court was unable to remedy the possible error of the legislator, even though it legislated on the matter, which is not within its competence, with new criticism arising from this thesis, which was led by Min. Nancy Andrighi. Bearing all this in mind, it is concluded, from a legal and legal point of view, that the STJ's decision was not correct, given that the Superior Court does not have competence in legislative matters, it being up to the legislative power to decide whether or not to maintain the taxativity of art. 1,015 of the New CPC.