O efeito expansivo rescindente na formação progressiva da coisa julgada

Abstract

This research faced two problems, one of them was the progressive formation of res judicata, and the other one was about the consequence of the discovery in a defect rescission in a process which already has a part of his immutable object. In those cases, the interested person must be use in a typical overcoming of res judicata, such as the rescission action? Or he is allowed to acknowledge this defect within the process, through a way of overcoming atypical of res judicata, namely the expansive effect rescission? Already, it is advised that it adopted this last option. Regard to the first problem, after doctrinaire collating and the appointment of the new rules garb inserted by Civil Procedure Code of 2015, it was realized that Brazilian law accepted, perfectly, the progressive formation of res judicata, that is, including the guidance of the Court Superior for Labour and the Supreme Court. Regarding the second issue, it is clear that the application of the principle of instrumentality in the way of complaint defect, combined with the principles of efficiency, economy, reasonable duration of the process and legal certainty, allowed us to conclude that the Rescission defect can be recognized inside the process , even in the face of the unchanging portion of merit. So if part of merit be immutable (whether through an interim decision or a stand-alone chapter of the sentence that was not resource object) and if in the continuation of the process for review of the remaining merit be founded a Rescission defect, the judgment of appeal in face of the decision that analyzed the final installment of merit, could be provided with an expansive rescission effect, to reach the part of the already immutable merit in demand. However, knowing that even without being absolute, the res judicata is unquestionable systemic importance, This work also addressed some requirements to enable rescission expansion, starting with the existence of a Rescission defect, that is, one that would justify the use of a typical overcoming of res judicataas well as express request of the interested side, together with the observance of the two-year rescission period and, finally, the effective contradictory assurance, which together form the authorizers requirements of rescission expansion of the effects of the judgment a resource, providing the recognition insde the process of a Rescission defect in face of the installment of immutable merit.