Súmula vinculante: uma afronta ao livre convencimento motivado do Juiz.

Abstract

The theme súmula vinculante, Is recent In the way juridical pátrio, excepted some attempts of vinculação of the judicial decisions, with the seats of the House of Suplicação and Prejudged them, that were resembled each other institutes that. The work in screen has as objective to demonstrate the all it is noxious to the adoption of this effect vinculante in our juridical system, that he/she has Roman-Germanic traditions, front to the judge's free motivated convincing. To present research it will present, in a clear way, through the investigation exegética teleológica, in the renowned doctrine, the historical evolution from the genesis of the State of Right, marked by the French and American revolutions, the decisions colegiadas of Supreme Cortes of England, France, Portugal, among other, the one of the Brazilian juridical system to the current edition of the súmula vinculante. Besides, the concepts of juridical institutes will be discussed as the jurisprudence, the effect vinculante and the súmula of effect vinculante, trying to demonstrate that the law is the main source of the right in our juridical system, tends the jurisprudence and statements ofthe Tribunais, secondary character, totally subordinate to thé law, and in that way, they cannot modify it or to alter it. Destarte, will be discussed the meaning of the súmula of effect vinculante, its purpose, and the effect vinculante, pautado in the German doctrine, from where he/she originated and the vinculação forms already existent in the Brazilian juridical system. It is still, the unconstitutional aspects of the súmula of effect vinculante will be analyzed, front to some constitutional beginnings. Finally, he/she brings it it analyzes of the adoption of the súmula of effect vinculante as solution for the moroseness of the Brazilian justice and under the prism of the insult to constitutional beginnings, notedly, to the of the free motivated convincing of the magistrate and of the application of the hermenêutica in the construction of the right. Ademais the work, in screen, presents the hypothesis of application of the súmula resource impeditiva, as possible and better solution of assuring the processual velocity and the juridical safety. That empiric study allows the verification that, the irrational application of such súmula prestigiando the processual velocity in detriment of every one juridical ordenamento, constitutionally pautado in beginnings and fundamental warranties, looking for the good to be social and the citizen's defense, not if coaduna the current juridical-social and political reality.