Análise prévia de admissibilidade recursal que inadmite o recurso inominado e sua desfederalização na prática

Abstract

Since under the old Law of Small Claims Court (Brazilian Federal Law nº 7.244/84), through its articles 41-49, even today, under the Special Civil Courts (Brazilian Federal Law nº 9.099/95), there isn´t a legal provision for the appeal called "bill of review" justifying the legislator choice to doesn´t create it between the practice used in the Courts and its guiding principles. For the majority doctrine, the legislator didn´t want or never was intentioned to give amplitude to the appeal system on a subsidiary form to the system of Special Civil Courts so, has limited the legal provision to the request for amendment of judgment (Motion for Clarification) and an appeal called Innominate Appeal. If he in fact wants, he has done so expressly, which, incidentally, would be even counter intuitive, since if they acted, wouldn´t sense the creation of simplified system. Thus, considering the simplified system of appeals and the principles of orality and celerity, there is no provision to: appeals against interlocutory decisions, cross appeal, claim and request for recharging en banc or any other appeals provisioned in the courts internal rules or judicial organization laws. However, important to note that when the singular judge make the negative admissibility of the Innominate Appeal, we identified the absence of legal provision to an interlocutory appeal in this procedural system. The obstacle to the processing of Innominate 8 Appeal may violate the constitutional principle of full defense In practice, to avoid irreparable harm or against decisions manifestly contrary to the law, devoid of legal grounds, there will always a constitutional remedy accepted in most Brazilian states – writ of mandamus. In exceptional cases, when the interlocutory be about merit, in case s of emergency guardianships (concessive or denial) and then, when the decision may cause damages difficult to repair, part of the doctrine accept an appeal exceptionally. In these cases, the appropriate appeal is undoubtedly the interlocutory appeal, should not be confused with the specific hypotheses of mandamus and another appeal called Complaint. It was precisely the absence of any regulation in the Brazilian Federal Law nº 9.099/95 regarding of an applicable appeal or objection to the inadmissibility of an appeal and the diversity of procedures adopted by the Brazilian states that me aroused the purpose of further study on the subject