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Tese
O tribunal deve manter a sua jurisprudência íntegra, e agora?: a integridade dos precedentes como garantia do direito fundamental de acesso à justiça a partir do Supremo Tribunal Federal
The objective of the present study is to answer the following question: can the obligation of the jurisprudence integrity attributed to Brazilian courts may contribute to the guarantee of the fundamental right of access to justice? The central hypothesis of the research is that one of the elem...
Autor principal: | HOMCI, Arthur Laércio |
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Grau: | Tese |
Idioma: | por |
Publicado em: |
Universidade Federal do Pará
2023
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Assuntos: | |
Acesso em linha: |
http://repositorio.ufpa.br:8080/jspui/handle/2011/15492 |
Resumo: |
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The objective of the present study is to answer the following question: can the obligation of the
jurisprudence integrity attributed to Brazilian courts may contribute to the guarantee of the
fundamental right of access to justice? The central hypothesis of the research is that one of the
elements able to guarantee the fundamental right of access to justice is the performance of the
Brazilian courts from the observance of the integrity of their jurisprudence, according to the
precedental jurisdiction that is long for in Brazil. The research is justified, as we still lack an
investigation that applies the legal value of integrity as a possible solution to the problems of
our community regarding access to justice. To reach the general objective, four chapters are
elaborated, each one corresponding to a specific objective of study. In the first chapter, we
demonstrate how the precedent movement is happening in Brazilian law, stating that our
tradition, historically more identified with the civil law tradition, does not constitute an
impediment for this movement, but imposes several challenges to the consolidation of law in a
precedent perspective. In the second chapter, we expose how the Brazilian normative system is
regulating the application of binding precedents, especially from the 2015 CPC, passing by
some basic concepts of the precedent theory, and we analyze how society participates in the
formation of binding precedents. In the third chapter, we investigate the role of integrity in this
scenario, we seek to justify the insertion of the expression “integrity jurisprudence” in the
wording of article 926 of the Civil Procedure Code, and we sustain that Ronald Dworkin's
theory of law as integrity can be a form of interpreting the meaning of this expression and its
importance to our legal system. In the last chapter, we established two objectives: to expose the
faces of access to justice in contemporary jurisdiction, and to assess whether the Federal
Supreme Court, particularly in trials involving issues related to access to justice, considers the
principle of integrity as a relevant value to our legal system. In conclusion, we discourse how
the Supreme Court practice should be a relevant guide to the performance of all Brazilian judges
and courts. The research transits among deductive methods, from the bibliographic analysis of
the authors studied, and inductive methods, based on the analysis of the STF precedents and its
concrete application. The objective of the methodology used is to accomplish a scientific
research, seeking in the theory of law, in the theory of precedents and in practical experiences,
the answers to the presented problem. |