Deliberação e procedimento no STF: discutindo a relação

• Ano de defesa: 2015
• Autor(a) principal: Koatz, Rafael Lorenzo Fernandez
• Orientador(a): Barroso, Luís Roberto
• Banca de defesa: Binenbojm, Gustavo , Pessanha, Rodrigo Brandão Viveiros , Mendes, Conrado Hübner , Mendonça, Eduardo Bastos Furtado de , Arguelhes, Diego Werneck
• Tipo de documento: Tese
• Tipo de acesso: Acesso aberto
• Idioma: por
• Instituição de defesa: Universidade do Estado do Rio de Janeiro
• Programa de Pós-Graduação: Programa de Pós-Graduação em Direito
• Departamento: Centro de Ciências Sociais::Faculdade de Direito
• País: BR
• Palavras-chave em Português: Supremo Tribunal Federal; Corte Constitucional; Suprema Corte; Poder Judiciário; Modelos de Deliberação Judicial; Precedentes
• Palavras-chave em Inglês: Brazilian Supreme Court; Constitutional Court; Supreme Court; Judiciary Branch; Models of Judicial Deliberation; Precedents
• Área do conhecimento CNPq: CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO::DIREITO PUBLICO
• Link de acesso: http://www.bdtd.uerj.br/handle/1/9314

The scope of this thesis is to offer a contribution for the legal community to rethink the functioning and the resolution process currently adopted by the Brazilian Supreme Court, proposing changes which may improve the management of precedents, enhancing the speed of the process and the society as a whole. The changes proposed intend to realign STF to the legal transformations to which Brazil is going through within the past years, mainly after the reform approved by the Constitutional Amendment nr. 45/2004. With such proposals, we aim to contribute with the development of the Brazilian law and the institutional improvement of STF. The thesis is developed in three parts. In the first, the conditions through which the Judiciary rose as a protagonist in contemporary societies are presented, as well as the current changes of the Brazilian legal system and how they affect the Brazilian situation. The goal is to identify if a transition from a civil law system to a common law one has occurred. To perform such goal a study of the different institutes in connection with the judicial precedents theory is developed, examining them under the light of the Brazilian legal system transitions. Concluding the first part, the different decision models adopted by constitutional courts and supreme courts are presented, discussing their advantages and disadvantages in view of the form, extension and depth. The main objective of the second part is to put the Brazilian Court in a historical perspective aiming to identify the causes that transformed it in a dysfunctional and slow court. To meet this goal, the work goes briefly through the Brazilian constitutional history to present the main characteristics and various deliberation steps of the Brazilian Supreme Court development. As it is presented, the Brazilian Supreme Court reached its institutional apotheosis as a result of the changes due to the Brazilian Constitution of 1988. The second part is concluded with an analysis of the difficulties and problems brought by Brazilian Supreme Court s new protagonist role. In the third and final part, proposals to solve the problems previously identified are presented, with the purpose of transforming the Court s day-to-day activities. The proposals are organized in three types. Firstly, interpretation changes to alter the functioning and/or the deliberation process of the Supreme Court; secondly, focused in the functioning of the Court; and thirdly, in the improvement of its deliberation model. The intent is to suggest changes that do not imply the need of legislative or constitutional reforms tended to change the institutional design, focusing on measures within immediate reach of the Brazilian justices. Regarding the functioning of the court, the changes proposed are of cultural nature, involving the stance of the judges, counsels and aids; and to be adopted by means of amending the court s internal rules. In what concerns the deliberation process, the thesis proposes suggestions in connection with the advantages and disadvantages of adopting a new deliberation model, as well as the means do adjust