A utilização inconsistente do distinguishing como forma de afastamento da Súmula 593 do STJ: uma análise dos fundamentos adotados pelo Tribunal de Justiça de Minas Gerais nos casos envolvendo estupro de vulnerável

Abstract

This study aims to analyze the use of the distinguishing technique by the Court of Justice of Minas Gerais to set aside Precedent No. 593 of the Superior Court of Justice, in order to assess whether the grounds adopted are compatible with the precedent’s ratio decidendi. First, the theoretical foundations of judicial precedents are presented, with emphasis on stare decisis, the identification of the ratio decidendi, and the functioning of the system of precedents in the Brazilian legal order. Next, the techniques of distinguishing and overruling, the requirements for the proper application of distinctions, and the risks arising from their inconsistent use are examined. Subsequently, the development of Precedent No. 593 of the Superior Court of Justice from Repetitive Theme No. 918 is analyzed, as well as its application by the Court of Justice of Minas Gerais, with a focus on the grounds used to justify its non-application, such as the formation of a family unit, parental approval, the existence of an affective relationship, and the age difference between the defendant and the victim. Finally, the Indianópolis case is examined as an example of inconsistent distinguishing, demonstrating that the particular circumstances emphasized in the judgment were not legally relevant enough to displace the determining reasons of the precedent. The methodology was based on qualitative research conducted through a literature review, documentary research, and a case-law survey of the official database of the Court of Justice of Minas Gerais. Due to the confidentiality of the proceedings, the Indianópolis case was reconstructed from news reports and publications available concerning the judgment.