Precedente obrigatório e previsibilidade : a vinculação da tese de incidente de resolução de demandas repetitivas como garantia da segurança jurídica

Abstract

The study proposed the investigation of a relationship between the Incident of Resolution of Repetitive Claims and legal certainty, the latter being a fundamental right of considerable importance in the Brazilian legal system, while the former serves as a guiding element in the management of cases with similar controversies in the pursuit of equality of outcomes. Even though the risk of legal uncertainty is considered one of the authorizing requirements for the initiation of the incident, this work sought to analyze in a broader sense how the Incident of Resolution of Repetitive Claims, in the form of a mandatory precedent-setting tool, can effectively ensure legal certainty during its proceedings and with the presentation of a binding precedent. To achieve the proposed objective, the selected method of approach for the development of this research is deductive, with a qualitative approach, considering the premises constructed throughout the chapters about binding judicial precedent as an important instrument to achieve legal certainty, the strengthening of its force within the Brazilian legal system as a means of improvement and assurance of fundamental procedural rights, and further, how the Incident of Resolution of Repetitive Claims, through the thesis formed therein with binding effects attributed by procedural law, can be capable of demonstrating that legal certainty is realized through the mandatory replication of the precedent established in the incident, being the intended result. Furthermore, as technical procedures, bibliographic and documentary research will be utilized, based on the collection of materials (doctrines, theses, articles, case law, among others) regarding the proposed topics. To this end, this work undertook incursions into the theory of judicial precedent as part of the common law system and a reflection of the stare decisis rule to provide solutions to cases with similar factual rationales. Similarly, it was presented how the pursuit of legal certainty, especially in civil law countries, led to legislative changes, which, influenced by the Anglo-Saxon system, began to present the option of promoting jurisprudential uniformity through the figure of binding judicial precedent. In the same vein, it was demonstrated that the Brazilian legal system signaled various times through normative changes the need for systematizing judgments rendered by the Judiciary, culminating in the modifications presented by the 2015 Civil Procedure Code. Moreover, the changes made for the presentation of the Brazilian binding precedent were demonstrated and justified as a historical guideline of the legal system. Thus, this study demonstrated the main grounds and factual justifications for the implementation of a Brazilian system of binding precedents, as a tool to maintain the uniformity, stability, integrity, and coherence of Brazilian jurisprudence. Within the precedent system, the work chose to focus on a section to deepen the study of the Incident of Resolution of Repetitive Claims, presenting its main foundations, characteristics, empirical findings, as well as fundamental procedural rights realized through its utilization and a comparative analysis with similar institutes. In conclusion, the study found that the Incident of Resolution of Repetitive Claims emerges as a useful tool for managing repetitive claims through formal normative binding, besides being an unequivocal instrument to ensure legal certainty within the legal system.