Relativização da coisa julgada nas ações de investigação de paternidade.

Abstract

The relativization of res judicata, theory initially held in Brazil by José Augusto Delgado, consists in taking an unquestionable judicial decision, in other words, a decision that is not possible to file any appeal or other revision instrument, and reappreciate it. In fact, the relativization means to expand the chances of res judicata review. This study aims to analyze the relativization of res judicata thesis in paternity investigation for the actions that had a sentence transited in rem judicatum without performing the DNA test, which proves itself very effective in this determination, giving a certainty degree above 99%. To achieve this goal, was employed the deductive approach method, the historical and comparative as a procedure method, and legal exegetical and hermeneutic, being the research subsidized by indirect documentation examination, through bibliographic search using books, dissertations, papers and magazines. This study provides a historical analysis of filiation Institute to be able to understand its normative developments, especially regarding to the children recognition, as well as the res judicata analysis. This one is a constitutional provision based on legal certainty principle, in which all cause must have an end, so the demands do not become so long that it is not possible to reach justice, the conflict solution. Opposing this idea in the paternity investigation cause, is proposed relativization of the cause that did not submit to DNA testing, based on real truth search and human dignity principles, to seek the conflict solution among constitutional principles, using reasonableness and proportionality principles. The thesis, although not legislated, currently finds support for its application in both doctrine and jurisprudence.