Critical analysis because of the regulatory anomia of the provisions in item v of article 927 of the 2015 civil procedure code

Abstract

The study developed below is intended to analyze, under an argumentative hermeneutic prism, the theme related to the lack of regulation of the procedure of the 2nd degree courts, notably in its Internal Regulations, on the orientation of the plenary and the special body expressed by art. 927, item V, CPC/2015. This is because the lack of a procedure for identifying and formalizing the orientation of the plenary and the special body makes it impossible to treat such understandings as binding precedents. In this sense, in order to explore the theme in its entirety, the emergence and peculiarity of each legal model present in the West are analyzed, namely Civil Law and Common Law, together with their influences on the Brazilian legal system. Subsequently, the necessary elements for the formation and application of the precedent will be presented: the doctrine of Stare Decisis and the components of the precedent ratio decidendi, obiter dictum, distinguishing and overruling. It is important to emphasize that the lack of regulation in the Internal Regulations of the second degree courts on the use of binding precedent referring to the orientation of the plenary or the special body, of these courts, generates the legal problem of the impossibility of treating such understandings as binding precedents, since these courts are silent on the procedure for the formation and application of these understandings. Thus, we seek to shed light on the theme