Os embargos de divergência e a força vinculante de suas decisões

• Ano de defesa: 2022
• Autor(a) principal: Sampaio, Marcus Vinicius de Abreu
• Orientador(a): Wambier, Teresa Arruda Alvim
• Tipo de documento: Tese
• Tipo de acesso: Acesso aberto
• Idioma: por
• Instituição de defesa: Pontifícia Universidade Católica de São Paulo
• Programa de Pós-Graduação: Programa de Estudos Pós-Graduados em Direito
• Departamento: Faculdade de Direito
• País: Brasil
• Palavras-chave em Português: Embargos de divergência; Efeito; Vinculação
• Palavras-chave em Inglês: Divergence motion; Effect; Binding
• Área do conhecimento CNPq: CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO
• Link de acesso: https://repositorio.pucsp.br/jspui/handle/handle/27215

This thesis aims to analyze the divergence motion, from a perspective that is broader than the legislator intended to attribute to it. This investigation has the purpose of giving the decision on the merits a binding effect not only on the court in which the decision came from but also on other judges and courts. The divergence motion is approached in this respect, considering its effective content and object. That is, to unify the possible dissonant positions before the Superior Court of Justice and the Federal Supreme Court. Furthermore, as far as its object is concerned, there was no other way than to consider this resource as a means of establishing thesis and standardizing positions, not only interna corporis, since these courts have as one of their main functions to bring together the dissonant positions from all other courts. This is to initially establish the true functions of those higher courts, that is, how superior courts are regarded, and among these functions, the nomophylactic one. The study brings up several considerations. For one, it is discussed that if this type of appeal has as its main objective to define dissonant legal thesis within the courts that are responsible for its judgment - Superior Court of Justice and Federal Supreme Court – and since these courts must standardize its precedents beyond their own "walls" then, it is unavoidable to conclude that this instrument must produce effects beyond the courts from which the standardization emerged. To reach this conclusion, this investigation sought to examine issues involving binding precedents, considering CPC/2015, in particular articles 926 and 927. The procedural aspects related to the divergence motion are also analyzed, with the purpose to establish a position on an appeal that has a procedural structure that is extremely capable of setting forth qualified jurisdiction and a broad adversary proceeding. This is so as not to present any incompatibility with the other instruments that set precedents. In conclusion, the hypothesis of applicability of the appeal is investigated and concluded that the legislator missed a great opportunity to give greater efficiency to an important instrument capable of unifying positions and also to the very court precedents of the higher courts