A preclusão do juiz em matéria probatória: uma revisão jurisprudencial e doutrinária

Abstract

This work analyzes the institute of preclusion in Brazilian civil procedure, with a specific focus on judicial preclusion. After exploring the concepts, types (temporal, consummative, and logical), and the distinct legal natures of preclusion (legal fact, effect, sanction, or principle), the research investigates the central problem: whether the judge's evidentiary activities are subject to preclusion. The work contrasts the judge's instructional powers, based on procedural instrumentalism and the search for "procedural truth," with the stabilizing and structuring function of preclusion. The central argument exposes a paradox in the jurisprudence of the Superior Court of Justice (STJ): the Court rejects judicial preclusion in evidentiary matters, treating it as a matter of public policy, but, contradictorily, consolidates consummative preclusion for other public policy matters (e.g., statute of limitations), invoking legal certainty. The monograph criticizes this rejection for violating legal certainty, objective impartiality, and good faith. As a solution, it proposes overcoming the paradox through the adoption of "valorative formalism," which redefines preclusion as an instituteguarantee, arguing that any decided issue, including evidentiary ones, must become stable and bind the judge.