A aplicação da tese da taxatividade mitigada do artigo 1.015 do Código de Processo Civil pelo TJRJ sob a ótica do ideal da calculabilidade da segurança jurídica

Resumo

This dissertation examines how the Rio de Janeiro Court of Justice (TJRJ) has applied the doctrine of “mitigated taxativity” regarding article 1.015 of the 2015 Brazilian Code of Civil Procedure (CPC/2015), in light of Humberto Ávila’s concept of legal certainty, particularly its dimension of calculability. The starting point is that legal certainty, understood as cognoscibility, reliability and calculability, requires a reasonably uniform and predictable pattern of decisions on the admissibility of interlocutory appeals (agravos de instrumento). In order to assess whether the mitigated taxativity thesis has actually fostered this goal, the research combines a literature review on taxativity, mitigated taxativity and legal certainty with an empirical analysis of 1,473 decisions rendered by the TJRJ in four years: 2016 and 2017 (before the consolidation of Superior Court of Justice Precedent 988) and 2020 and 2021 (after its publication). Decisions were selected through random sampling based on structured searches on the TJRJ case law database and classified according to the underlying interlocutory decision and the outcome on the admissibility of the appeal. Knowledge indexes were built for each hypothesis, allowing for a temporal comparison of how the court has dealt with interlocutory appeals. The findings show that, before Precedent 988, the TJRJ adhered closely to the statutory list of article 1.015 of the CPC/2015, with very low divergence and high levels of predictability. After the adoption of the mitigated taxativity thesis, however, there was a marked expansion and asymmetry in the admissibility of appeals in situations not expressly provided by law, especially regarding competence, stay of proceedings, expert fees and production of evidence. The conclusion is that, within the scope of the TJRJ and the data analyzed, the mitigated taxativity thesis did not enhance legal certainty; instead, it increased uncertainty about the admissibility of interlocutory appeals by shifting predictability from statutory rules to judicial discretion.

Ficha do documento

Tipo

Outro

Ano

2025

Instituição

Fundação Getulio Vargas

Fonte

Repositório da FGV

Idioma

Português

Acesso

Acesso aberto

Identificador

oai:repositorio.fgv.br:10438/38255

Palavras-chave

Taxatividade mitigadaAgravo de instrumentoSegurança jurídicaCPC/2015Jurisprudência do TJRJMitigated taxativityInterlocutory appealLegal certaintyBrazilian Code of Civil ProcedureRio de Janeiro Court of Justice case lawDireitoJurisprudênciaRio de Janeiro (Estado). Tribunal de JustiçaBrasil. [Código de Processo Civil (2015)]