Name: CARLOS ALEXANDRE PASCOAL BITTENCOURT E SILVA
Publication date: 17/10/2022
Advisor:
Name |
Role |
|---|---|
| TIAGO FIGUEIREDO GONÇALVES | Advisor * |
Examining board:
| Name |
Role |
|---|---|
| MARCELO ABELHA RODRIGUES | Internal Examiner * |
| RODRIGO REIS MAZZEI | Internal Examiner * |
| TIAGO FIGUEIREDO GONÇALVES | Advisor * |
Summary: The dissertation deals with the preclusive efficacy of the rectifying decision in the CPC/15, aiming to analyze whether in the 2015 Code of Civil Procedure the rectifying decision (in the strict sense, in accordance with inc. I of art. 357 of CPC/15) has preclusive efficacy. The study is divided into three parts. In the first one, the general aspects of the rectifying decision and organization are analyzed to better understand the institute (concept, brief history and its allocation in the CPC/15). In the second part, procedural stability is analyzed as a genus, comprising several species, such as preclusion and res iudicata. In the third part, the preclusive effectiveness of the rectifying decision in the strict sense is properly analysed. It is concluded that: i) the
rectifying decision (in the strict sense) has preclusive efficacy, which manifests itself, in the first moment, with the stability of §1 of art. 357 of the CPC/15, preventing the firstdegree judge from redeciding the same matter already decided, regardless of whether it is a matter of public policy; from the party perspective, it will be up to it, if it so wishes, to raise the question on appeal. The second moment of the preclusive efficacy of the rectifying decision occurs when the stable decision , in the form of §1 of art. 357 of the CPC/15, eventually is not attacked on appeal, taking on, consequently, a preclusion feature for the parties, judge and Court to re-discuss or reassess the same matter already decided, regardless of whether it is a matter of public policy; (ii) the preclusive effectiveness of the rectifying decision is independent of the nature of the matter decided, i.e. whether they are so-called "public policy" matters or not; (iii) the generated preclusion, which prevents the Court from redeciding the matter not challenged, is in line with the non suspensive and translative effects, since it is limited to what is challenged by the party on appeal, even if there is a question of public policy to be decided; iv) the stability of the rectifying decision is its tendency to remain in the first degree of jurisdiction. This stability carries the preclusive effect, consisting of the judgebeing prevented from re-examining the same matter already decided, regardless of its nature, and, in the case of the parties, they may only contest the content of the rectifying decision on appeal level, regardless of the prior formulation of request for clarifications or adjustments.
