Banca de DEFESA: MARIA LUIZA DE ALMEIDA CARNEIRO SILVA
Uma banca de DEFESA de MESTRADO foi cadastrada pelo programa.STUDENT : MARIA LUIZA DE ALMEIDA CARNEIRO SILVA
DATE: 30/11/2020
TIME: 19:30
LOCAL: UFRN - PROGRAMA DE PÓS-GRADUAÇÃO EM DIREITO / Videoconferência
TITLE:
THE FUNDAMENTAL PROCEDURAL RIGHT TO THE GROUNDS OF JUDICIAL DECISIONS: A FOCUS ON JUDICIAL PRECEDENTS
KEY WORDS:
Grounds of judicial decision. Legitimacy. Democratic jurisdiction. Judicial precedents.
PAGES: 128
BIG AREA: Ciências Sociais Aplicadas
AREA: Direito
SUMMARY:
Based on the influence of the legal system of commom law in Brazilian law and the provision of the 2015 Code of Civil Procedure and its democratic protagonism, supported by a procedural system of cooperation, two implications stand out: the imposition of the duty to substantiate judicial decisions and the formal incorporation of judicial precedent. In conceiving the grounds for judicial decisions as a fundamental procedural right, the purpose of this dissertation was to analyze how the construction of a truly grounded judicial decision influences the creation of a democratically legitimate judicial precedent. In this perspective, the rationale of judicial decisions in its constitutional bias is exposed as a requirement of the legitimacy of the act of deciding, at the same time that it portrays her procedural issues. It is evident that the judicial precedent demands, for his correct application, that the judicial decision based on it demonstrate a full link with the ratio decidendi. It is understood that the ideology of a democratic process is correspondent to the extent to which the judicial decision, through its grounds, meets the procedural dialectics, considering that it is a subjective right of the parties to have access to a truly reasoned decision, thus there is a social acceptance of that decision. Therefore, it is suggested to resign the judicial precedent by means of a dialogical creation of the judicial decision, demanding adequate grounds in favor of legal security and a better connection to the decisions of the Supreme Courts, guaranteeing the reliability and stability of the precedent in the adequate jurisdictional practice, especially in face of the transformations of society. The methodology used was the bibliographic research, with emphasis on the existing doctrine and other publications related to the subject, such as related legislation, articles, among others, with the use of the deductive scientific method and qualitative approach. Finally, it is concluded that the fundamental procedural right to the justification of judicial decisions fulfills a requirement of citizenship in a Democratic State, therefore its essentiality, and that judicial precedents, once legitimately constructed, containing a justification and argumentation of the decisions that originated them, will effectively serve for the legitimate construction of future judicial decisions that are binding on them.
BANKING MEMBERS:
Interno - 1167852 - JOSE ORLANDO RIBEIRO ROSARIO
Interno - 010.069.614-70 - LEONARDO OLIVEIRA FREIRE - SESED
Presidente - 1675264 - RICARDO TINOCO DE GOES
Externo à Instituição - WALBER CUNHA LIMA - UNI-RN