Abstract

PINTO, Adriano Moura da F.  and  MELLO, Nilo Rafael B. de. THE PRECEDENT MICROSYSTEM IN THE NEW BRAZILIAN CIVIL PROCEDURE: AN INTERPRETATION. Revista Internacional CONSINTER de Direito [online]. 2019, n.8, pp.525-542.  Epub June 28, 2019. ISSN 2183-6396.  https://doi.org/10.19135/revista.consinter.00008.30.

This study intends to perform a critical analysis of common law institutes within the Brazilian civil procedure system. The new Brazilian Civil Procedure Code introduces a new judicial precedent system, in order to deliver fairer decisions. What would be, in the Brazilian system, the decision patterns that could be identified as precedent? To answer that question, the works of Câmara (2018, 2018), Streck (2016) and Dowrkin (2005) are used, in a bibliographical analysis that intends to find out what was the legislator’s intentions. It is found that, by means of common law tradition principles and concepts, the legislator conceives mechanisms of decision patterns that must be observed by the courts, in order to fulfill the equality and legal certainty assured by the Brazilian Constitution. As a result of this study, it can be said that not all decision patterns mentioned in aticle 927 are to be interpreted as precedent, even if they are binding decisions. Also, some of the dispositives the processual legislation brings instruct and bind judicial decisions with little communication with the courts. In the same way, it can be said that article 927 must be interpretd in conjunction within the judicial system’s logic as a whole, in orther for it to have integrity and coherence.

Keywords : Ratio decidendi; Stare decisis; Precedents; Uniformization; Integritye; Coherence.

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