Da coisa julgada e sua relativização: ação rescisória

Abstract

The present work aims at the elaboration of a study that intends to approach the procedural concept of res judicata and its relativization based on norms pre established for this purpose, in accordance with the procedural formalities, typical of the democratic legal systems, paying special consideration to rescissory action, which opposes to the growing doctrine who defends the atypical relativization of res judicata, in other words, going against the formal and material limits imposed by the rescissory action, specially in the cases where the sentences are absurd or teratological, emphasizing the binomial legal stability versus constitutional guarantees. The first element of this binomial coincides with the primary component of the res judicata, proclaimed in the impossibility of arguing again the merits of the sentences, when its final res judicata, signaled by the transposition of the appeals, transferring the parties to the certainty of the judicial service, achieved by immutability and the preclusion of the sentential command. The second element to be considered, gives to the disputing parties the certainty that the rights protected by the federal constitution are safeguarded against a judicial decision rendered in disarray with these precepts, since, even when the character of immutability and preclusion rests on it. There will be the possibility of this inherent quality of the sentence being transposed, or mitigated, aiming at the effective restoration of the offended constitutional right, independent of normative contemplation expressed, in the face of the inadmissibility of ruling in the scope of the legal system, decisions tainted by the vice of unconstitutionality. The Civil Procedure Code, aligned with these elements, but still taking a conservative approach, kept the rescissory action as a path to stability of the substantive sentences, imposing time and material limits that are unsurpassable, which is a situation that encourages the debates among scholars and courts who defend the review of res judicata beyond what is allowed today by rescissory action.