Precedentes e Agravo Interno: Perspectivas Constitucionais da nova sistemática recursal do art. 1.030, §2º, do Código de Processo Civil de 2015

Abstract

The use of precedents in civil proceedings represents a step forward in gaining effectiveness and efficiency in judicial provision. It allows to rationalize the demands, reinforcing the ideas of uniformity, stability, coherence and integrity of the law. The shortening of the procedural march is a consequence of the use of precedents. However, the practice must take into account other factors, such as the adequate understanding of its meaning and the insertion of the civil procedure in a principled-constitutional context, especially from the formalization of a brand new appeal system. In it, the maximization of the interlocutory appeal as a means of contesting decisions that guarantee the perfecting of fundamental rights and constitutional and procedural principles is a reality. From these premises, the objective of this work is to present the constitutional perspectives, from this principled interaction, that the expansion of the use of the interlocutory appeal to control the adequacy of the use of mandatory precedents (with binding authority or ?formal? binding authority sense) bears before the current Brazilian civil procedure. Specifically, the intention is to analyze the coherence, from a systemic-procedural point of view, of the use of the interlocutory appeal. One of the problems presented from the studied perspectives is the rupture of the coherence of the system and, therefore, of the uniformity itself, from the inadmissibility of an appeal against the judicial decision handed down in the system of art. 1.030, §2, of the Brazilian Code of Civil Procedure of 2015. Another object of debate throughout the work is the conditionality of the dialogic construction and the form of composition of the judging bodies of this decision to be handed down in this new interlocutory appeal system. Seeking to reconcile theory and practice, a hypothetical-deductive methodology will be used based on bibliographical and jurisprudential research. The work is structured in three chapters. The first deals with the precedents and the reasons for (in)admitting a theory in Brazil. The second on the interlocutory appeal, history, principled insertion from the brand new appeal system and the nuances linked to the interlocutory appeal under debate. The third discourse presents the constitutional perspectives that the interaction of principles in the thematic clipping can lead to, putting the hypotheses of the research in debate, through an evaluation regarding the coherence and integrity of the procedural reform led by Brazilian Federal Law n. 13.256/2016. In the end, it is argued that the interlocutory appeal of art. 1.030, §2, of CPC/15 holds indirect systemic coherence, as long as: a) the internalization of the culture of precedents in the molds of the common law is admitted in Brazil, requiring the adoption of a differentiated argumentative route to determine the binding application of the legal theses established in the mandatory precedents; b) an interpretation according to art. 5, LIV, of CF/88, to recognize the ultimate jurisdictional competence of the Superior Courts to decide appeal claims involving techniques of development of law through precedents; c) consequently, the filing of appeals is allowed in view of the decisions handed down in the interlocutory appeal of art. 1.030, §2, CPC/15, to the plenary sessions of the Courts that instituted the respective precedents, with the possibility of later judicial review by Superior Courts, in case they are not the competent ones; d) an assessment of the adequacy of the application of mandatory precedents is promoted (i.e. of theses of general repercussion andrepetitive appeals in accordance with article 1.030, items I, II, and III, of CPC/15) based on a meritorious solution bias (i.e. primacy of judgment on the merits of appeal), moving away from the invocation of offensive jurisprudence or cognitive restrictions due to procedural issues; e) take into account the horizontal interoperability of Brazilian courts in terms of precedents, that is, to become aware of and evaluate in the argumentative path other judgments handed down by local and regional Courts of the same hierarchy, taking into account the same ratio decidendi, in order to avoid conflicting decisions in the national territory (disruption of unity and systemic coherence); f) legislative changes are made (lege ferenda) to standardize the competence of the fractional bodies responsible for the evaluation of the interlocutory appeal (art. 1.030, §2, CPC/15), based on the new system, as well as providing for in procedural law or in the internal regulations of each Court the procedure applicable to the techniques of developing the law through precedents.