Os embargos infringentes (art. 530 do CPC/73) e técnica de julgamento (art. 942 do CPC): uma pesquisa empírica quanto à utilidade dos mecanismos no Tribunal de Justiça de Pernambuco.

Abstract

The present work deals with the form of examination of differences in the system of the Civil Procedure Code - CPC/73, via motion of reconsideration (“embargos infringentes”) from art. 530 and in the new Civil Procedure Code through the application of the technique of art. 942, clarifying significant differences between these mechanisms. At first, it is adopt, as theoretical reference, Professor Araken de Assis, in the sense that "one of the biggest problems in the interpretation of the new law is to inculcate a sense identical to the old law". Under a theoretical approach, through bibliographical study and consultation with jurisprudence, various aspects related to the application of the technique of art. 942 are analyzed. The historical context and the objectives aimed to support the removal of the motion of reconsideration and insertion of the trial technique are covered. The dissertation also brings in its bulge empirical research carried out in the framework of the Court of Justice of Pernambuco in order to answer the research problem, which is the usefulness of the motion of reconsideration (embargos infringentes) and the trial technique in the State Court, as well as any possible commitment of the jurisdictional allowance. Considers, for this purpose, the lessons of Barbosa Moreira, for whom “the standard is not powerless or omnipotent, so that the reality must be search”. The research method used is quantitative and qualitative. The results reveal that the motion of reconsideration (embargos infringentes) present an inexpressive use in the Court of Pernambuco when compared to other mechanisms, during the two previous years of the reform. The rate of provision of motion of reconsideration in the period under review, which is from 01/03/2014 to 01/03/2016, was 3.64% by Finance Chambers and 21.73% by Civil Chambers. Regarding the trial technique of art.942 from CPC, 141 lawsuits were examine by Finance Chambers and 82 by Civil Chambers in the periods from June to December 2017 and June to December 2018. The level of influence of the technique in court varies, comparing the Public Law and Civil Law Chambers, as well as the years of survey (2017 or 2018). In the Public Law Chambers, from 2017 to 2018, during the analyzed months, considering the analysis criteria, the percentage of change in vote of any judge in extended session rose from 16.33% to 35.90%; the reversal of the result rose from 21.81% to 50%; and the range of unanimity in the understanding of different materials from 1.81% to 21.79%, approximately. It was identified 31 distinct divergence object materials, as well as some IACs or IRDRs raised about them. In the Civil Chambers, the percentage of change in vote of any judge in extended session fell from 17.24% to 10.80% of; the reversal of the result fell from 38.70% to 15.78%; and with respect to the scope of unanimity in the understanding, the fall was from 6.06% to 2.30%. The survey also identified 39 subjects with differences in Civil Chambers; however, until the completion of this work, no IAC or IRDR had been raise. From the results, it is evident that the motion of reconsideration does not represent indicatives able to be responsible for possible dilatoriness of justice. From the insight of appeal utility embraced in the study, it is possible to conclude that only in the group of Civil Chambers from the Court of Pernambuco, the utility of the motion of reconsideration was satisfactory. As a mechanism inserted in a system of precedents, though in a persuasive context, positive conclusions were reach from the application of the trial technique from art.942 in the Court of Pernambuco in order to achieve a jurisprudence more compatible with the “constitutional values”, in particular: equality, isonomy, legal certainty and celerity principals.