Análise da teoria dos precedentes judiciais no novo código de processo civil a luz dos princípios constitucionais

Abstract

As from the Constitutional Amendment No. 45, the Brazilian legal system maintains a close relationship with the law based on respect for precedents , or common law , commonly used in English speaking countries . In Brazil , through the influence of colonization by the Portuguese , one adopted the civil law system , used by most European countries , which means that in order to say there is a predominance of laws in the legal system. However , over the years , it has proved the inability of the Legislative Power to foresee all situations of daily life , and that this situation gave some power to magistrates, such as the freedom to interpret the laws , without tying up to their own understanding or to higher courts . Given this situation, the common law gained prominence , which caused the emergence of various legal institutions and of demonstration for reform of the Code of Civil Procedure of 1973 in order to ensure its greater effectiveness in society , thus generating the draft Law 8046/2010 . Thus , in the present work, one seeks to analyze the historical aspects of the Brazilian Civil Procedure (brief history and principles / rules regulators) and the systems , common law and civil law , as well as find out how the law of precedents is applied in the current legislation and will be applied with the approval of the new Codex , performing a brief analysis of comparative law . One concluded to the importance of respecting judicial precedents in the new systematic procedure in the light of constitutional principles.