DURAÇÃO RAZOÁVEL DO PROCESSO E PADRONIZAÇÃO DAS DECISÕES JUDICIAIS: UMA ANÁLISE CRÍTICA

Abstract

The focus of this article is a critical analysis of the regularity of judicial decisions, via mandatory precedents, introduced in our legal system. It aims to analyze whether the precedents themselves were brought to our legal system or just a technique for making consistent decisions, as well as identifying the main flaws in this new judgment pattern. A qualitative approach was used, given that the results were identified through an evaluative benchmark and, therefore, not numerical. The research was descriptive using deductive reasoning, considering that, using the concept   of what effectively is a judgment based on precedents, it perused to specifically analyse whether the precedent introduced in our legal system corresponds to what has been traditionally used in the legal system. "common law" and what are its main flaws verified in the implemented  paradigm. As for the policies, the investigation was bibliographical to answer to the following research problem: were precedents brought to our legal system or just a technique for standardizing decisions and what are the main flaws in this new judgment paradigm? It was found that the crisis in the Judiciary led to legislative reforms that culminated in the publication of EC 45/04. It was found that, gradually, the consistency of judicial decisions was being inserted in our legal system, resulting in the introduction of a compulsory precedent (CPC, art. 927). It has also demonstrate that our paradigm of precedent is not consistent with the existing precedents in the common law system, being just an idea of ​​precedent. It was noted that this organisation of precedents has not been, in practice, applied correctly for a number os reasons, such as: the use of precedents has been automatic and, not rarely, based only on the mere invocation of previous judgments, without factual analysis of the concrete case that made stronger the paradigm decisions and without a real comparison with the facts of the case , that was judged based only on the precedent; meaning , according to part of this doctrine, unconstitutionality of the norms that created binding effectiveness of precedent and non-binding precedents with no constitutional provision; the analysis of the reasons for deciding ("ratio decidendi") is often dimished, due to the degree of abstraction existing in binding precedents, and also due to the difficulty of distinguishing, in the concrete case, the "ratio decidendi" of the reasoning "obter dicta" etc.