Name: JOÃO FELIPE CALMON NOGUEIRA DA GAMA
Publication date: 20/06/2016
Advisor:
Name |
Role |
|---|---|
| FLAVIO CHEIM JORGE | Advisor * |
Examining board:
| Name |
Role |
|---|---|
| FLAVIO CHEIM JORGE | Advisor * |
| SAMUEL MEIRA BRASIL JR | External Examiner * |
| TÁREK MOYSES MOUSSALLEM | Internal Examiner * |
Summary: The research exams the issue of the res judicata, emphasizing its objective limits, in accordance with the Civil Procedure Code of 2015. It understands the legal system as a set of systematized rules in force/vigor at any given time and space. About the Brazilian legal system, it makes a cut (which is possible only abstractly at the level of the metalanguage of the Science of Law) to study/describe only possible legal rules built from the New Civil Procedure Code of 2015. Therefore, it does not include no longer valid rules, rules of foreign positive legal systems, rules that are not related to the individual civil process, and other perspectives in which the object of research phenomenon could be studied. The work has two parts. The first one builds the foundation, using notably the base provided by the General Theory of Law and the Theory of Legal Rule. It begins with the study of the language, highlighting their types, their forms, their functions and their possible levels. Stipulates the four meanings of the sign "law" used in this work: prescriptive language of positive law, descriptive metalanguage of Science of Law, legal system and descriptive system. Stresses the distinction between fundamental legal concepts and positive legal concepts. Observes the rule in its structure and describes possible classifications. The second part analyzes the res judicata and its objective limits on CPC/15. Rejects certain definitions created by scientists of civil procedural law and describes the "res judicata" as the legal effect produced by the verification by the accredited agent of the occurrence of certain legal facts. Labels the res judicata in three species in accordance with the different rule antecedent: res judicata, formal res judicata and issue preclusion. Describes the rights and duties determined by the res judicata and its "functions". It analyzes the limits of the studied phenomenon. Verifies the objective limitation of the phenomenon to the judgment of the final decision, even in cases of "issue preclusion". Discusses the scope of the studied phenomenon regarding miscalculation or material inaccuracy. Observes the impossibility of res judicata to cover "implicit judgments" (or no judgment). Describes the immunization of the decision regarding legal supervening facts.
Keywords: Res judicata. Objective limits. Civil Procedure Code of 2015.
