A RESSIGNIFICAÇÃO DA COMPREENSÃO DO INTERESSE RECURSAL NOS EMBARGOS DECLARATÓRIOS INTEGRATIVOS

Abstract

The purpose of this essay is to discuss the hypothesis of an autonomous interest in appeal for the discussion of the grounds of a court decision by means of a motion for clarification with integrative effects. The traditional understanding of the requirement of succumbence as a model for appeal interest deserves to be re-dimensioned in the face of the constitutional and infra-constitutional requirement of adequate and well-founded decisions, especially under the bias imposed by the 2015 Code of Civil Procedure, to exhaust the essential discursive nuclei presented in the arguments and counter arguments of the parties. The central discussion of this work is based on the presence of an interest in appeal when the appellant, despite having obtained the material object discussed in the case, has not had an argument launched as an object of analysis by the court decision, which would lead to an interest in the motion to stay the proceedings, despite the orthodox theory that the absence of succumbence causes the absence of an interest in appeal. The 2015 Code of Civil Procedure sheds light on the subject because the grounds of the decision are capable of forming a binding precedent, in addition to authorizing the possibility of a rescission

action in certain cases. The hypothesis is that not allowing the plaintiff to have a proper appeal interest to discuss the grounds, including to question the reasons and the legal basis applied, causes legal uncertainty. From this point of view, the motions for clarification authorize this type of questioning in order to exhaust the discussion put before the court, especially when the issue involves qualified precedents. If the law is enforced by coercion, as Hans Kelsen put it, it is certain that the construction of the decision must be permeated by reason and discursive and exhaustive reasoning, a role that the remodeling of the traditional dogma of the understanding of appeal interest in motions for clarification proposes. The method adopted is descriptive, based on deduction, and the technique of bibliographical research and case analysis were also used at the appropriate times. It was possible to see that the hypothesis was duly proven.