Embargos infringentes: apelação, ação rescisória e outras polêmicas

Abstract

Abstract: -

Appeal to Enforce the Dissenting Opinion of a State Supreme Court Decision ( Embargos Infringentes ) - This legal device, provided by Article 530 of the Brazilian Code of Civil Procedure (as amended in 2001) has its roots in the Portuguese Law. It allows the State Supreme Court to re-examine its prior decision, arising from an appeal or from an action for annulment of a trial court sentence, in order to enforce the dissenting opinion. This thesis focuses on the several interpretations of the aforesaid Article 530, and its applicability to other kinds of decisions by a State Supreme Court. The scenario of the Brazilian procedural system, its recent reforms and the importance of the appeal chosen as the central theme of this thesis are approached at the introductory chapter hereof. Other chapters focus on the principles and effects of Brazilian civil appeals in general and their historical background. In order to design its dogmatic profile, that appeal ( embargos infringentes ) was analyzed deeply concerning its philosophical aspects and main procedural requirements, the jurisprudence available and its national and international authoritative basis. This thesis emphasizes questions related to the applicability of that appeal ( embargos infringentes ) to several procedural situations, specially when involving the merit of a case, as well as its applicability to other kinds of appeal, such as adhesive or subsidiary appeal, interlocutory appeal, appeal attached to the records, and so on. The applicability of such appeal ( embargos infringentes ) to decisions related to civil actions where the State Supreme Court has original jurisdiction in also analyzed. Conceptual aspects are also emphasized, such as the lack of unanimous decisions and the need to show that the dissenting opinion is in fact correct and should be enforced by the State Supreme Court. Other points approached comprehend procedural timing and court fees, formal regularity and the appellant s liaison with the ratio decidendi. Finally, other procedural issues are analyzed such as re-examination of preliminary and prejudicial issues, public issues and the immediate applicability of Article 530 to appeals filed before its amendment. Conclusion: This thesis shows that the current statutory law is limited and it is the role of the authorities and jurisprudence to solve doubts growing out of real cases. A de lege ferenda proposal is suggested aiming at a legislative update.