RES JUDICATA UNCONSTITUTIONAL: THE LEGAL NATURE OF THE UNCONSTITUTIONALITY DEFECT AND THE RESCISSION OF JUDICIAL DECISION

Abstract

The present study has as its object the contrary understandings and in favour of thethesis that proposes the relativization of res judicata material in case of violation ofconstitutional standards. With the contrast between legal certainty and other constitutionalvalues, there are doctrinal disagreements as to the legal nature of the defects ofunconstitutionality (consistent in considering whether this generates the lack, the invalidity orineffectiveness of decision of merit), which binds the choice of procedural instrument to beused for the termination of the trial. At that point, the doctrine addresses four main situationsrelated to the legal nature of the decision and the means of termination: the ruling based onlaw that is subsequently declared unconstitutional by the Supreme Court; the decisionestablished in law ever declared unconstitutional; the decision ceases to apply standardconsidered unconstitutional, which subsequently is declared constitutional by the SupremeCourt and the decision which violates directly the Federal Constitution. The study of theseissues is critical given the chance brought by articles 475-L, § 1, and 741, sole paragraph, ofthe Code of Civil Procedure. From the analysis of res judicata as unconstitutional anddoctrinal positions on the subject, aims to verify the legal nature of the addiction ofunconstitutionality and their consequences for possible rescission of decision, if there is aconflict between constitutional norms and values which should prevail.