O manejo dos embargos declaratórios em sede recursal para efeito prequestionamento dos recursos especial e extraordinário.

Abstract

Take care of this monograph to describe the interrelationship between the declaratory embargos and extraordinary and special resources, where the first act, in many cases to meet specific requirement of the order of seconds, the call prequestionamento, providing access via the applicant's extraordinary . Should be warned that the prequestionamento is a judicial creation, developed since the constitutional reform undertaken by the First Amendment 45, 2004, which among other measures, introduced the art. The 102-Policy Letter, giving freedom to the Supreme Court to supplement the written law, through the issuance of the Abridged from its publication in the official press, binding on all courts of the country and the bodies of the direct and indirect. Using this prerogative the Praetorium Exalted interfere in the procedure of creating the so-called exceptional appellate obstacle, whose aim is to filter the large volume of shares distributed systematically in the higher courts, which accumulate awaiting trial, and the overload ends up bulging the finality of judgments, aside the adjudication of its social function of giving effect to the substantive law. The 45th Amendment, in fact, is a landmark in Brazilian law entered a syncretic trend as positive in the constitutional field the expression of reasonable duration of the process, which noticeably affected the civil suit, a trend that is reflected in the role assigned to prequestionamento, as well as the recent changes made in procedural law. The aim is to take this opportunity to analyze the effects of civil procedure in syncretic phenomenon, focusing on system resources, particularly in the exceptional features of the procedure.Through a dialectical approach, the thesis will be developed in order to demonstrate the advantages of a syncretic process, antithesis, which is the alleged loss in legal certainty through the rigor of the abandonment of traditional forms, and brief, where they will point to possible solutions the apparent conflict of principles. The methodological approach will be historical, deductive and monograph. Having made these notes, the end will be shown the importance of judicial role in building the modern logic of procedural law, when courts have abandoned the traditional position apply only to legislative will, from the condition of the true source of law.