Jurisdição democrática e a teoria dos precedentes judiciais: uma crítica à generalidade e hegemonia na aplicação dos precedentes judiciais e o dever de fundamentação analítica das decisões

• Ano de defesa: 2018
• Autor(a) principal: Queiroz, Liana Carine Fernandes de
• Tipo de documento: Dissertação
• Tipo de acesso: Acesso aberto
• Idioma: por
• Instituição de defesa: Brasil; UFRN; PROGRAMA DE PÓS-GRADUAÇÃO EM DIREITO
• Palavras-chave em Português: Jurisdição democrática; Teoria dos precedentes judiciais; Decisão judicial; CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO
• Link de acesso: https://repositorio.ufrn.br/jspui/handle/123456789/27447

In this paper, we propose a critique of the generalized and hegemonic application of precedents in the elaboration of the judicial decision, emphasizing the indispensability that the decision-making act be endowed with analytical justification, adequate to the current cooperative process, in which the dialogue is revalued procedural and the exercise of substantial adversary, by imperative of the constitutional jurisdiction that is intended to be democratic. It is conceived, therefore, that the democratic exercise of jurisdiction requires more than rational instruments for the procedure justifying the decision-making, covering the very trajectory of forming the conviction of the judge - from a proceduralist perspective - its approach to the problem, to be subject to careful examination, the projection to the case of possible decisions and their consequences, including reaching other subjects not involved in the process. It seeks to make compatible the incorporation of a system of judicial precedents to the legal order of the country, above all by the current Civil Procedure Code (Law 13.105 / 2015), with the democratic and dialogical exercise of jurisdiction, which should not end the debate when of the proposition of the action, but, in making the decision public, to suggest a new debate from it in the contexts of the society, in order to have the improvement of the own jurisdiction in the concretion of justice. It is understood that the formation of the judicial decision is essential to the understanding of the legal phenomenon itself, as a result of the influences of all actors who are involved, directly or indirectly, in its elaboration, whether the subjects and their lawyers, the courts and their jurisprudence , the academy and its doctrines, and also organized civil society, with a prominent role in the function, for example, amicus curiae. Therefore, it is necessary to legitimize the judicial decision, in order to establish a fair and democratic process, through the discursive rationality and the analytical basis of the decision-making process, after having fostered procedural dialogue and the effective consideration, by the judge, of all the procedural manifestations of the parties for the elaboration of the decision, being unnecessary the pure and simple application of judicial precedent to a given concrete case, without the adequate rebate to the theses constructed by the procedural subjects. It is understood that a new conditioning on the cooperative process arises from the exercise of jurisdiction, which is precisely the consideration of the arguments of all procedural subjects. It is suggested to rethink the system of current application of a model of a system of precedents that is imperfect for the Brazilian process, which proposes to guarantee legal certainty, predictability and reliability based on the verticalization of the judicial decision and on the subjection of the magistrate to precedents, whether binding or persuasive. It adopts as methodology the bibliographical research, with the analysis of the related doctrine, of the legislation and the jurisprudence.