A (in) segurança jurídica na teoria da taxatividade mitigada no recurso de agravo de instrumento

Abstract

The Civil Procedure Code of 2015 brought innovations about the appeal of interlocutory decisions in relation to the previous legislation, by providing in its art. 1,015 only the interlocutory appeal as a suitable resource and, apparently, restrict its chances of fitting. Such innovation brought divergence in the doctrine, for some the role was exhaustive, for others despite being exhaustive, the hypotheses were widely interpreted, and for others the role was exemplary. The discussion went to the courts with the filing of several appeals for interlocutory appeals for decisions not provided for in the list, on the grounds of urgency. The discussion reached the Superior Court of Justice, which brought together two Special Resources that dealt with the matter, to judge under the rite of Special Repetitive Resources, an opportunity in which the interpretation of that list of art. 1,015 was of mitigated taxativity, being possible to manage the resource in the event of a decision not foreseen in the list, provided that they demonstrate the urgency, characterized by the uselessness of the challenge of the decision only after the sentence, as preliminary of appeal. It turns out that the interpretation signed by the STJ presents legal uncertainty, as the interpretation of what is urgent is the responsibility of the party harmed by the decision, and above all, the judge who will assess whether the contested decision denotes urgency. Thus, this paper aims to analyze the precedent of the STJ, from the perspective of the principle of legal certainty and the theory of precedents and its implications for the decisions of the STJ itself and of the Courts of Justice. For this, the research adopted the deductive method, starting from the hypothesis that the precedent brought legal uncertainty, which will be developed by the methodology of bibliographic research of works of the indoctrinated of the Brazilian civil process and reaching its objectives by the exploratory research, analyzing the effects of the precedent of the STJ in the jurisprudence of the national courts. The work will be structured in three development chapters. The first studies the concept and fundamentals of legal security in the rule of law and in the Brazilian legal system. The second proposes to analyze the appeal of an interlocutory appeal in its historical perspective until reaching the CPC of 2015. Finally, the third chapter will evaluate the decision of the STJ, discussing the legal uncertainty caused, the consequences of this binding precedent for the courts of justice, as well as the need for reliable precedents.