A vinculatividade dos precedentes judiciais no sistema processual brasileiro e seus influxos no cabimento de ação rescisória com base no inciso V do artigo 485 do código de processo civil

Abstract

This study aims to examine the application of the theory of judicial precedents in the branch of Brazilian civil procedural law and, specifically, whether there is possibility that precedents serve as appropriateness hypothesis of rescission action. From a bibliographical methodology, it is intended, in this work, to do a quick historical review and verify the trend of convergence between the traditions of Common Law and Civil Law in recent decades. It is also intended to show the elements and the binding of the common law precedents from stare decisis as well as identifying the creativity of judicial activity as key assumption in both traditions. From that point, the work will lend itself to overcome the positivist conception of the sources of the right, seeking a conceptualization from argumentation theory, to include the precedent as a source of law. From criteria, it will seek to identify degrees of binding judicial precedents in the Brazilian legal system. Given this situation, it will examine the hypothesis appropriateness of rescission action ready in art. 485, V of the Brazilian Code of Civil Procedure and it will question the doctrinal and jurisprudential idea that only the law can serve as such. From criteria of degree of binding of the sources, it is proposed the possibility that certain precedents judicial can serves as causa petendi of rescission action.