A possibilidade de indeferimento do pedido de desistência do recurso como meio para coibir manobras processuais destinadas a evitar a formação de precedentes: uma análise do REsp 2172296/RJ

Abstract

Appeal withdrawal is provided for in Article 998 of the Brazilian Code of Civil Procedure as a unilateral prerogative of the appellant, allowing them to waive the judgment of their appeal. However, the expression “at any time” contained in the provision has generated intense doctrinal and jurisprudential debate regarding the temporal and functional limits for its exercise. This controversy gained relevance with the judgment of Special Appeal No. 2,172,296/RJ, in which the Superior Court of Justice denied the withdrawal request filed by a large company, recognizing the strategic nature of the maneuver and the significant public interest in establishing a precedent regarding the liability of application providers in cases of revenge pornography. This paper aims to critically analyze this decision, in light of the dispositive principle, the public function of the process, and the need for uniformization of case law. It concludes that, although appeal withdrawal is a potestative right of the party, its abusive use may jeopardize the integrity of the precedent system, making judicial control and even the denial of the request legitimate when necessary to ensure the institutional role of the Judiciary.