Direito fundamental à coisa julgada civil: um estudo sobre a coisa julgada inconstitucional em confronto com o princípio da segurança jurídica e sua aplicação nas mais atuais e relevantes questões apreciadas pelo poder judiciário no âmbito de direito público brasileiro

Abstract

This essay has the objective to appraise, analyze and to interpret what is unconstitutional resiudicata, and in the practical application of jurisprudence of national courts in public law. The Institution of the res iudicata is treated in the Brazilian Law by the Constitutional Text, by the Brazilian Civil Process Code, besides the Law of the Introduction to the Brazilian Civil Code and sparse legislation. Due to the multiplicity of Law subjects taking care of the Institution, for one part of the doctrine, it would not have constitutional protection and it could be modified and even abolished under infraconstitutional norms. Under that premise, it was built the doctrine known as relativism of the judged thing , that links the effects of the resiudicata thing to its normative fundament of validity or the justice of decisum. Once the chosen subject has its very own characteristics of almost exclusive development in the national doctrine it was privileged the doctrine exam and national jurisprudence, not failing to remember, nevertheless, the contributions of the foreign doctrine, when, effectively, they could support the analyzes of the approached issues in this Essay. The text presents the origins of the res iudicata and classifies the essential process elements for the understanding of the Institution as a process-juridical category. It examines the principle of juridical reliability, its historical evolution and its interpretation in the current law, as well as, the nature of the judged thing as a normative category, to the Institution position in the Brazilian Constitutional text. It also mentions, the juridical nature of the formed sentences in rejoinder to the present Federal Constitution and the effects of the doctrinaire positioning that states the no existence of the unconstitutional res iudicata. Yet, it proceeds, to the study of the new writing of the articles 475-L § 1st and 741, single clause, of the Brazilian Process Civil Code, consolidated by the Law number 11.232/2005, that partially accepted, the above indicated theory. At last, it dedicates considerations on representative judicial decisions of practical difficulties that the application of the Institution has had in the brazilian jurisprudence