Direito fundamental à coisa julgada e sua restrição

Abstract

This study is concerned with Res Judicata and its intersection with the rules of article 457-L, 1st paragraph, and article 741, sole paragraph, of the Civil Procedure Code, and aims at analyzing the constitutionality of such rules. It comprehends the development of procedural science, the historical evolution of constitutionalism, and its particular intensification in the field of contemporary juridical dogmatism and procedural law. From the constitutional perspective of procedural law, the security is identified as the source of both procedural juridical norms and juridical security norm-principle, from which the fundamental right to Res Judicata, foreseen in the Federal Constitution, 5th article, XXXVI, is extracted. Under these theoretical approaches, the study analyses the aforementioned procedural rules from their dogmatic and legislative inspiration, and concludes that their content contains another fundamental right, consisting of the justice of decisions. However, because they are restrictive rules of fundamental right, the only way they can be constitutionally compatible is by being subject to restrictive interpretation. Results demonstrate the extension and scope of such restrictive interpretation, and suggest that, despite being constitutional, these rules are considered illegitimate because they are anti-democratic, as they suppress the circumstances of the concrete case as elements which are necessary for the application of incidental and allegedly colliding fundamental rights.