OLIVEIRA, M. J. S.; http://lattes.cnpq.br/3279015927447868; OLIVEIRA, Maira de Jesus Silva de.
Résumé:
The development of the civil procedural right as half suitable capable to check larger
effectiveness to the material right allowed the appearance of several questions
concerning certain juridical institutes. Among so many, one of the most controversial
subjects for the juridical community based in the civilian law says respect to the limits
of the judged thing. With the complexity of the human interactions, the Right had to
adapt to the new ones work, in way to guarantee the fair exercise of the jurisdictional
activity. The idea of judged thing was created, initially, to give safety to the definitive
sentences in having judged. In a direct way, all the production procedural got of the
Roman-Germanic right influenced in the construction of the legislation procedural
civilian of Brazil, besides in what it concerns to the formulations on the res iudicata.
Notwithstanding the different perspectives on which the latter can be observed, the
main ones are the material aspect. Possessing constitutional forecast, the judged
thing assumes outlines related to the wrought juridical safety for the decisions of
merit in having judged, as understanding consolidated in New CPC. To the light of the
doctrinaire and legal constructions as for the rescissory action and to the theory of
the judicial precedents, they are born for the right procedural civilian new Brazilian
unfoldings as for the relativization of the thing judged material before foreseen him/it
in the arts. 525, § 15 and 535, § 8° of the effective codex and their consequences not
just in the sentence execution of paying right amount, as well as in the whole legal
order, once the thing judged material has been assuming characteristics more and
more flowing, being possible his/her changing and debatable by rescissory action in
reason of emanated decision of Superior Tribunal in the execution of constitutionality
control, independent of the time in that such a definitive decision has transit in having
judged. The desconstruction of the judged thing and of the juridical safety of her
coming it is clear, especially when observed the current legislative tendencies and
average case laws in the Superior Cuts. In the meantime, it is discussed to what
extent the provisions of Articles 525, §15 and 535, §8 of the New CPC affect the
intangibility inherent in the thing judged material. To demonstrate the truthfulness of
such hypothesis will be used in the present study, the hypothetical-deductive method,
since the questions raised will be analyzed and tested in order to obtain a coherent
conclusion, as well as the procedural method of comparison, which will allow the
confrontation of existing doctrinal formulations about the res iudicata material and the
control of constitutionality. The technique of research in use will be the literature,
through the study of material already published.