The analysis of the judicial precedents within the latest Brazilian legislative reforms and the project of the civil procedure code: a comparative study with the North-American law

Abstract

By tradition, the judicial precedents at civil law countries play merely a persuasive function, in contrast to the binding function played by the precedents within the common law systems, specially the North American Law. Nevertheless the recent changes in the Brazilian procedural law have given binding effects to the higher Brazilian courts' decisions, meaning that they establish a decision content that will oblige judges and lower courts, very similarly to the leading cases within common law. This tendency brought some innovations, such as the binding stare decisis, stare decisis which blocks the case review, special repetitive review, most anticipated judgment, all that measures are within the Project of New Brazilian Procedure Code, in which they are enacted through the known as "incident of repetitive demands resolution". This phenomenon kwon as "binding stare decisis" (precedentarização dos julgamentos) is based on two principal reason: i) the search for a more fast process, once the excessive time of proceduring of one demand causes many inconvenient results even to the winning party, this time could be shorter if the request is judged as soon as possible by the application of the biding stare decisis; ii) the equity in the judgment for similar demands which occurs by the same judicial fact, the mass demands, that implies the same solution given by the stare decisis which binds the judgment of all similar demands. It urges a profound analysis of such legislative solutions given to the major Brazilian Judicial Brand's problems, based on a binding stare decisis, especially considering the constitutional impact of these recent procedural measures that could affect the due process of law, i. e. the right of action, adversary system in a collaborative meaning, the right of defend oneself against prejudicial decisions, among other important values that guide the Brazilian constitutional procedural law. For this reason, it is important to focus on the comparative study between the Brazilian procedural law and the North American procedural law that adopts biding stare decisis. In this particular, there is a strong communication between these two procedural law concerning the precedents' application, which is facilitated by the judicial models' circulation, discussion and study of a new Brazilian Procedural Civil Code, because there is not a study about this matter in Brazil concerning the analysis of the North American binding stare decisis. The stare decisis and binding precedent doctrines can bring a significantive elucidation to the judicial precedents' application by the common law systems and also justify the recent national choices. (AU)