DELIBERAÇÃO E VINCULAÇÃO: OS IMPACTOS DO MODELO DE JULGAMENTO DOS TRIBUNAIS BRASILEIROS SOBRE O SISTEMA DE PRONUNCIAMENTOS JUDICIAIS OBRIGATÓRIOS DO CPC/2015

Abstract

This article discusses the impacts of the typical deliberative model of Brazilian Courts on the system of binding precedents adopted by the Civil Procedure Code. The current model, inspired by Common Law countries associated with stare decisis tradition, includes specific requirements for decision-making. In this research, we seek to verify whether these requirements are compatible with the Brazilian Courts’ modus operandi and, above all, how these courts write their decisions. In the first section, we approach the deliberative models seriatim and per curiam, open and closed, and show where the Brazilian case may be located within these classifications. The second part is intended to review the ration decidendi concepts for binding precedents, an essential issue for the construction of judicial decisions. Then, the analysis is deepened, focusing on the discussion about the reflexes of deliberative models for the current system in Brazil. Finally, it is proposed to continue this debate, to find out whether or not there is an ideal deliberative model for the functioning of that system. This article has a qualitative methodological approach and is based on legal literature and doctrine review, plus empirical finding and data analysis. We conclude that the typical deliberative model of Brazilian courts, called here seriatim pro forma or in a potential state, is closer to per curiam and is more compatible with the objectives of binding precedents' systems than the classic seriatim. However, all of these models have advantages and disadvantages for the functioning of the system.