Fungibilidade recursal: análise da adequação da jurisprudência e doutrina às mudanças promovidas no instituto pelo CPC/2015

Abstract

The present work aims to study the fungibility principle, analyzing its importance in the appellate context, as well as its assumptions and effects. In this context, in order to understand the subject, a brief study of the pertinent rules of the appellate system is made. In addition, considering the relation of the institute to the theory of nullities and to the instrumentality of forms, such matters are also examined. Then, the fungibility principle is studied, starting from a historical analysis, to understand the requirements made by doctrine and jurisprudence for its application, corresponding to the existence of objective doubt, non-existence of gross error and observance of the deadline for the correct appeal; as well as the criticisms levelled at such a requirement. To this end, through the deductive method, an analysis of the doctrine, jurisprudence and legislation related to the subject was carried out. Among the results found, it was possible to perceive that, in fact, the direction offered by the system of the Code of Civil Procedure of 2015 for the fungibility principle was ignored by the maintenance of the requirement of objective doubt and the absence of gross error, arising from the rules of previous codes, observing a difficulty in updating in relation to the new paradigms that influence the institute.