O prequestionamento e a admissão dos recursos excepcionais pelas cortes superiores (análise do prequestionamento sob a ótica da doutrina e jurisprudência dos Tribunais Estaduais e das Cortes Superiores, sua caracterização para a admissibilidade dos recursos especial e extraordinário, e das súmulas acerca do tema)

Abstract

The prequestioning encompasses preliminary debates and express resolutions on the subject matter in the lower federal court within federal or constitutional regulations upon the eventual analyses’ intention by the Superior Court. Considering the aforementioned, it is worth mentioning that in order to an appeal to be deemed accepted by the Federal Supreme Court, the subject matter upon which a new a trial is intended by means of these appeals shall be prequestioned. It may be possible to observe prequestioning through the prior assertation, involving the parties, of a federal or constitutional claim or through express resolutions resulting from that assertation. Furthermore, note that prequestioning of issues may be present without prior discussion of claims, since the court has expressly manifested its understanding. Considering the prequestioning as a former constitutional requirement and, despite the absence of express provisions in the 1946 Federal Constitution and in the subsequent Constitutions, prequestioning was not exempted from being an acceptance requirement for extraordinary appeals.With the growing number of extraordinary appeals in Brazil, the 1988 Federal Constitution provided for the creation of a Superior Court of Justice, in charge of judging special appeals, prepared to discuss nonconstitutional subjects. Accordingly, the Superior Court of Justice expressly requires the prequestioning of the subject matter in the special appeal. However, given the devious positioning of the Superior Courts with regard to the controversial issue involving the prequestioning of issues and precedents therein, a standardization of these opinions must be considered, aiming to ensure legal security to the parties, with extraordinary and special appeals, whichever may be the case