A coisa julgada, seus limites e o novo Código de Processo Civil: Lei nº 13.105/2015

Abstract

This work aims at rereading the res judicata theory - emphasizing its objective and subjective dimensions and the conditioning factors of time and space - which will allow us, in the end, to examine, critically, how the new Civil Procedure Code (Law 13.105, of March 16, 2015) impacted on this important institute that, despite the timid normative regulation, plays an important role in procedural science for its unquestionable practical importance. The study consists of nine chapters, besides a brief conclusion. In Chapter I, the res judicata is reviewed in its various theories, historical and contemporary. Chapter II sets out to examine the res judicata in its interface with the proceedings objective elements (subject-matter and cause of action), to extract minimum elements which enable us to examine, more accurately, the material limits of res judicata. Chapter III studies the res judicata from the constitutional law perspective, establishing bases, however minimal, to understand the doctrinal proposal of its relativity and the theory of unconstitutional res judicata. Chapters IV and V are dedicated to the analysis of res judicata in its correlation with the time and space factors, respectively. Meanwhile, Chapter VI highlights the subjective limits of res judicata, addressing how the institute behaves in the face of third-party joinder intervention, substitution of parties, succession, third party proceedings and solidarity, among others. Chapter VII attempts to systematize the res judicata in its objective dimension, highlighting the judgments reasoning and the res judicata estoppel effectiveness. Chapter VIII is dedicated to the prejudicial theory and the prejudicial questions in direct correlation with the res judicata material limitations. Chapter IX examines the discipline afforded to res judicata by the new Civil Procedure Code, dedicated not only to direct changes (covering topics such as prejudicial matters, incidental declaratory action and stable injunctive relief), but also the various indirect changes, which impacted reflexively on the institute (such as new disciplines conferred to the counterclaim and the implead, and the new incident of repetitive demands resolution). Finally, from the contemporary rereading of res judicata and a predominantly pragmatic view, the authors partial conclusions are condensed and the reflection presented about the impact that the new code generates, directly or 8 indirectly, on the institutes regulatory discipline. Expressly warns that the work does not address, even minimally. Except from a brief reflection, in Chapter III, on the legal measure found on article 741, sole paragraph, 1973 Civil Procedure Code (symmetric device to article 535, paragraphs 5 and following of the new code)