A relativização da coisa julgada nas ações de investigação de paternidade julgadas improcedentes por insuficiência probatória

Abstract

The question of the relativity of “res judicata” in paternity actions dismissed for insufficient evidence still find some resistance to a certain portion of doctrine and national jurisprudence, which understands that, in this case, legal certainty, which covers up the command of decisions judicial, must undoubtedly prevail over the principle of human dignity and the right to membership, those guaranteed by the Federal Constitution of 1988. Nevertheless, the Supreme Court in the trial of RE 363,889 / DF provides that, in the context of investigative actions paternity rejected for insufficient evidence, should be made a judgment of balance between the immutability of the court decision (embodied in “res judicata”) and the right to knowledge of the genetic origin by investigating (relevant part of the right to membership and the principle of the dignity of human person). Taking into consideration this balancing of constitutional principles, understood the Supreme Court by the possibility of the parties depart from the mantle of “res judicata”, in the case of paternity actions were dismissed, when you do not know the DNA test or when parties did not have the financial means to finance it, in search of the truth about the genetic origin of the child. In other words, it established the Supreme Court is possible that the parties judge the paternity action again when the first request was rejected as insufficient evidence, in order to now carry out DNA testing and finally be able to clarify the truth about the paternity of investigating. However, despite this understanding, based on the quest for justice of judgments in the harvest of family law, there remains disagreement on the part of a heading of doctrine and jurisprudence that oppose the relativity of “res judicata” beyond the legally established cases.