Constitutional Amendment No. 125 and relevance of the legal question in special appeals

Article published by Migalhas, available at https://www.migalhas.com.br/depeso/370477/a-ec-125-e-a-relevancia-da-questao-de-direito-no-recurso-especial

Despite the great relevance of the matter for the judicial system’s operation as a whole, the proposed constitutional amendment took exactly ten years to be approved by the National Congress.

In December 2020 I was delighted to publish my work entitled A Relevância da Questão de Direito no Recurso Especial (“The Relevance of the Legal Question in Special Appeals”), the result of my master’s thesis in Procedural Law at the State University of Rio de Janeiro. Back then, after the presentation of substitutive amendments, the proposed constitutional amendment was awaiting the appointment of a new rapporteur in the Senate’s Constitution, Justice, and Citizenship Commission since August 2017.

Despite the great relevance of the matter for the judicial system’s operation as a whole, the proposed constitutional amendment took exactly ten years to be approved by the National Congress. Presented on August 23, 2012, by deputies Luiz Pitiman and Rose de Freitas, the amendment was finally enacted on July 14, 2022, amending Article 105 of the Brazilian Constitution of 1988 and establishing the need to demonstrate, in special appeals, the relevance of the nonconstitutional federal question discussed in the case.

It can be said that one of the reasons for the delay in processing the proposal lies on the great impact on the Brazilian appeals system, especially on special appeals filed with the Superior Court of Justice (STJ). There are recurring criticisms that this constitutional innovation will make access to the Supreme Court even more difficult, thus attracting trends contrary to its implementation.

In this context and considering the very recent enactment of constitutional amendment No. 125, it is important to review, although briefly, the reasons why I believe it is healthy to introduce the relevance of the legal question as a filter for selection of special appeals.

Firstly, however, it is important to make a brief conceptual clarification. Although the derived constitutional legislator refers to the general repercussion1 and now to the relevance of the legal question2 as a requirement for admissibility of appeals, I understand that this would not be the most appropriate term.

This is because the admissibility requirements are linked to the procedural aspects of an appeal, such as interest in acting, preparation, timeliness, appropriateness, and compliance with other formal requirements.

On the other hand, the general repercussion and relevance of the legal question, as well as similar figures present in other legal systems, are intended to select the most significant matters that deserve to be entertained by a Superior Court, which takes reading, albeit perfunctorily, to evaluate the merits of the appeal itself. It would not, therefore, be a procedural filter; rather a selection criterion for judgment, intrinsically linked to the public role primarily performed by the Superior Courts in the trial of exceptional appeals.

So much so that, contrary to procedural issues, the characterization of the general repercussion cannot be analyzed by the Presidency of the Appellate Courts, such jurisdiction being exclusive to the Federal Supreme Court (STF), pursuant to Article 1035, Paragraph 2 of the Code of Civil Procedure. Incidentally, an identical provision should be arranged as pertains the relevance of the legal question in special appeals regulated by the aforementioned Code, with the constitutional amendment No. 125/22 stating that the Court can only deny special appeals “based on this reason upon statement of two thirds (2/3) of the members of the competent court for the trial.”

When dealing with the nature of this type of doctrine in the North American legal system, Michael Bobek3 states:

"The selection of cases typically in the form of various "leaves appeal," "petitions for hearing," or "writs of certiorari"- differs from the admissibility of an appeal. Admissibility is a procedural issue; it requires that certain procedural prerequisites are met for a court to deal with a case (e.g., the appeal must be filed within a specified period following the decision of the appellate court, a party must be legally represented before the supreme jurisdiction, and court fees have been paid). If these procedural prerequisites have not been met the court will refuse to deal with the case at all. The selection of cases is of a different character: it requires the court to examine the merits of the case, albeit in a preliminary and incomplete manner. Is the nature of the case - the legal question presented by it - sufficiently important to be dealt with fully and in depth by the supreme jurisdiction? Thus, admissibility and the selection of a case for hearing two distinct steps. The former is the necessary precondition for the latter".

It is true that the writ of certiorari regulated by the Supreme Court of the United States is endowed with greater discretion. However, the idea behind it is the same. In addition, Roman-Germanic system countries, such as Spain4, also refer to such tools as appeal selection filters.

That said, let us move on to the summary analysis of the reasons that support the institution of the relevance of the legal question as a filter for selecting special appeals. Such reasons are both theoretical and practical.

Starting with the theoretical framework, it is important to note that, within the classification of means of challenge, special appeals are characterized as exceptional appeals (or extraordinary appeals in the broad sense). Unlike ordinary appeals, exceptional appeals i) have grounds on precedents, that is, their hypotheses of suitability are provided for by law (in the case of special appeals, in Article 105, III, of the Brazilian Constitution of 1988); and ii) are not endowed with broad review prerequisite, being restricted to legal questions.

Owing to such striking features, it is said that exceptional appeals exercise a primarily public function, being focused on the development of Law and the standardization of caselaw. In this vein, the subjective interest of the parties, the main concern of ordinary appeals, are indirectly protected here, especially because the main beneficiaries of an integral and coherent caselaw are the very persons subject to the jurisdiction of a court — and society in general5.

According to Nelson Nery Jr., special and extraordinary appeals “are exceptional means of challenging court rulings,” and should not be used, therefore, “for the correction of justice, but are intended for the standardization of federal law (special appeals) in Brazil and the safeguard of Brazilian Constitution provisions (extraordinary appeals)”6. For Sérgio Bermudes7, appeals that have as their object the protection of right are ordinary. Extraordinary appeals, in turn, are those that aim to protect the law, and only reflexively, secondarily, the right of a party.

Incidentally, STJ has repeatedly highlighted the lawful nature of special appeals and the public purpose surrounding it. For example, in an Objection raised in the trial of REsp (Special Appeal) 1.721.705/SP8, reported by Justice Nancy Andrighi, STJ did not authorize the free withdrawal of the appellant on the grounds that the analysis of the special appeal transcends the subjective interest of the parties, with the definition about the legal questions being of public interest.

The nature and purpose of special appeals as a subgroup of the exceptional appeal genre, aimed at jus constitutionis and not at jus litigatoris, are the first theoretical considerations that underlie the implementation of the selection filter. On top of them is the role currently performed by the Superior Courts around the world — especially in Brazil. But to better explain this point, first one has to understand the historical role of precedents in the construction of Law and its strength today in legal systems.

As is known, for historical reasons, countries that adopt the common law system, such as the United States and England, have always had judicial precedent as the primary source of law. In these systems, the law is constructed from caselaw, so that a certain margin of freedom is conferred on the judge’s activity. Over the years, the doctrine of stare decisis was established, which is now absolutely cemented.

In civil law countries, on the other hand, the law has always been the primary source of rights. Owing to the distrust held towards judges in the historic moment of revolution, their role was limited to affirming what had already been said by the legislative power. That is, judges should simply be the mouth of the law (juge bouche de la loi), without any margin of interpretation.

These differences, however, are in the past. The convergence between the two legal traditions is clear, notably due to the importance that precedent has also acquired in civil law and the growth of legislative activity in common law, especially in the United States, where the phenomenon is known as staturification9.

For what matters here, this movement of caselaw going mainstream in the civil law gained traction in the course of the 19th century, a period in which legal positivism went through a period of sharp decline10. Since then, judicial precedents have been treated with increasing relevance.

This movement to give greater strength to caselaw in the civil law is firstly based on the recognition that laws and codes, however complete they may seem, are not able to foresee all types of conflicts, even more so when it comes to the modern society we live in today. In point of fact, concrete hypotheses in which there is no legal provision to be simply subsumed to the case are not rare.

Furthermore, several legal wordings have rather vague phrases11, from which more than one possible interpretation can be extracted. Thus, the indeterminate legal concepts, the general clauses, and the principles demand an important action from authorities in the sense of defining the exact scope and meaning of the rule in each concrete case12.

It is also worth noting that laws are subject to obsolescence. That is, while the wording of law remains frozen in time, society continues to evolve and change its way of thinking.

All these factors make it inevitably necessary to complement the legislative body through the performance of the interpreter. Caselaw is undoubtedly crucial for the development of a more comprehensive legal system, as they fill in the gaps left by the legislator, resolve any obscurities and textual ambiguities, as well as adjust outdated norms to the new values of society.

Therefore, judicial precedents play an important practical role in the construction of law, which, needless to say, is now widely recognized in civil law countries as well.13.

This phenomenon of increasing appreciation of judicial precedents as a source of law is also seen in Brazil. But it is worth noting that we are not dealing here with the classic conception of caselaw originally seen in the United States and England, in which the judicial construction was made from each concrete case.

When it comes to Brazil, as well observed by Osmar Paixão Côrtes14, there is a paradigm of procedures gravitating towards the law, according to which the procedural system would be changing from retail to leading cases. That is, stare decisis is vertical, leaving the Superior Courts, based on objective actions, to issue rulings that should be followed by the other instances. In this regard, the list of binding precedents of Article 927 of CPC applies.

Therefore, STJ plays the role of standardizing the understanding of federal norms. And it is up to STF to have the final say in constitutional questions. This is the part currently played by the Higher Courts around the world, which have long ceased to act merely as courts of revocation.

With due respect to different opinions, there is no way to conceive the performance of the Superior Courts, in the judgment of exceptional appeals, as third instance appellate bodies, being evident the prevalence of the public purpose in their activity. The injustices of concrete cases should be remedied by justices and courts of appeals, leaving the Superior Courts to establish precedents on important issues that will regulate the whole of society, including law enforcers15.

This form of organization provides a greater and more concentrated dedication of the higher courts in standardizing (typically attributed by the Brazilian Constitution) and, as a result, in the achievement of equality and legal certainty. It also complies with the principles of judicial economy, efficiency, and judicial rationalization, as Daniel Mitidiero points out16:

“The solution that best meets the need for judicial economy and timeliness of judicial protection is the one that shares the protection of rights in two different judicial levels, matching the two dimensions of the protection of rights. Ideally, only certain courts should be dedicated to the rendering of a fair ruling and that others take care only of the establishment of precedents. Thus, an ideal judicial organization assumes the need for a division between courts for rendering fair rulings and courts for the establishment of precedents - or, more briefly, between Courts of Justice and Courts of Precedent.”

It so happens that, for the Superior Courts to be able to carry out this relevant public function of standardizing positions, it is important to assure them the best possible structural conditions17. In addition, of course, to providing the tools to ensure compliance with its decisions.

Over the last few years, Brazilian legislators have been improving the procedural norms aimed at the compliance with decisions, so that we can currently speak of a “microsystem of binding precedents”18. That is to say, procedural tools are being provided and improved, CPC/15 being a great example of this.

But there is no point in having procedural institutes if the Superior Courts do not have full structural conditions to use them well. And here I am referring to the absolute overload of our Superior Courts. At this point, there is a substantiating theoretical reason with a practical reason for implementing the relevance of the legal question: on the one hand, the public purpose exercised by STJ as the ultimate interpreter of federal legislation; on the other hand, the difficulty of exercising this function well as a result of the incomprehensible number of appeals that are sent to its appraisal.

To put it into perspective, according to the Court’s statistical report, “in 2021, 412,589 cases were distributed and registered with the Superior Court, which amounts to 12,503 cases distributed per justice on average”19. In the same year, 560,405 rulings were issued.

Obviously, the huge number of rulings issued by STJ goes against its real purpose within the Brazilian legal system, since it is inconceivable that a standardization court issues more than 400,000 rulings by trial court and 100,000 collective court rulings in a single year20.

It is difficult to control and express, in a level and coherent way, a caselaw composed of so many decisions. This situation is not healthy for a system of binding decisions that is intended to be implemented, especially when this caselaw belongs to the Court responsible for a nationwide federal law enforcement unit.

But it is not just the huge number of new cases and decisions handed down each year that are noteworthy. Some appeals that reach the highest level with regard to federal legislation are absolutely irrelevant for the construction of law. For instance, STJ has already tried appeals involving: breach of contract for the purchase and sale of a cat21; award for damages based on poorly-made adjustments to a wedding dress22; neighbor fights23; use of elevator by dog24; swearing at condo meeting25. Justice Mauro Campbell26, in an interview to periodical Consultor Jurídico, also highlighted the trite cases tried by STJ.

It is, finally, a complete distortion of the jurisdiction conferred by the Brazilian Constitution of 1988. It is not possible for a Superior Court, which exercises a primary public role of final interpreter of the country’s federal legislation, to live with this unreal number of cases and have to consider questions that are absolutely insignificant for the harmony of the legal system and for society in general. This thought is totally contrary to its constitutional jurisdiction and the recognized purpose of the special appeal, as mentioned above, aimed at protecting the law27.

STJ should ultimately focus on resolving important issues that will have repercussions ultra partes. That is, STJ should become an authentic court of precedents, as happened with the Superior Courts of other civil law countries, especially in Spain28 and Germany.

And, with such purpose, it is essential to implement a selection filter for special appeals, such as the Spanish interés casacional and the fundamental meaning of the German question of law (grundsätzliche Bedeutung), both aimed at courts responsible for standardizing federal norms, such as STJ.

After all, once again, the excess of appeals to be considered and the high number of rulings issued each year hinder the exercise, by the Superior Courts, of the public function that they are responsible for. In this sense, Galic asserts: “if the doors to the supreme courts are wide open, this will inevitably result in the fading away of the public function of the supreme court’s adjudication.”

The fewer appeals to analyze (many of them frivolous, of lesser relevance or against judgments that do not deserve repair), the more time and structure left for the fitting and in-depth analysis of the really relevant legal issues that will have repercussions in some way in society. Likewise, the reduction in the number of cases in the higher courts mitigates internal inconsistencies and contributes, in this regard, to jurisprudential cohesion. It also provides a better view of controversial legal issues that have not yet been resolved.

In short, the filter rationalizes the action of the Superior Courts by facilitating their prospective action and contributes to jurisdictional efficiency by avoiding wasting time and money on insignificant issues. When commenting on the reasons for adopting a common law access filter to the Supreme Courts, Taruffo29 mentions precisely the need to avoid wasting time with frivolous or manifestly unfounded lawsuits, as well as the opportunity to set a precedent (which ultimately proves to be decisive for the development of a safe and equally applied legal system):

“The purposes served by the selection of cases are various in the different systems. Correspondingly, the legal devices used and the standards applied in the selection change from case to case. Moreover, the reasons for the selection are almost never explained, so that a direct analysis of such reasons is actually impossible. At any rate, among these purposes is the need to manage the workload of the supreme court and the opportunity to avoid the waste of time required to deal with frivolous or clearly ungrounded appeals. However, a relevant purpose relates to the problem of precedent. When a court selects a case for decision, a good reason for doing it may be the opportunity to set forth a new precedent, to overrule an old one or to solve a conflict or overcome an inconsistency among precedents. This may not be the only reason for the selection, but it may often be a sufficient reason to 'decide to decide' a case. At least, it may often be a good concurring reason for such a decision.”

Therefore, Constitutional Amendment No. 125/22, in historical recovery30, ultimately conferred greater rationality and effectiveness to the public function exercised by STJ as a special body responsible for standardizing the interpretation of federal norms. The so-called “defensive caselaw” developed over the last few years has shown itself to be a kind of internal response mechanism to the disproportionate overload of the Court; the selection filter, in turn, by demonstrating the relevance of the legal question, also resolves the problem of excessive appeals, but in a much more democratic, rational and appropriate way to the powers constitutionally granted to the Supreme Court.

Constitutional Amendment No. 125/22 included Paragraph 2, in Article 105, of the Brazilian Constitution of 1988, under the following terms: “In a special appeal, appellant should demonstrate the relevance of the nonconstitutional federal law issues discussed in the case, under the terms of the law, so that the admission of the appeal is examined by the Court, which can only deny it based on this reason by the statement of two thirds (2/3) of the members of the competent court for the trial.”

Additionally, in the new paragraph 3, some hypotheses of presumption of relevance of the question of law were established, namely: I - criminal lawsuits; II - administrative corruption lawsuits; III - lawsuits with an amount in dispute exceeding five hundred (500) minimum wages; IV - lawsuits that may generate ineligibility; V - hypotheses in which the appealed ruling goes against the dominant caselaw of STJ; VI - other hypotheses provided for by law.

As I had the opportunity to defend previously, I believe it is prudent to predict hypotheses of presumption of relevance, in order to confer a certain straightforwardness to the selection filter in question. This is because, despite exercising a function similar to that of STF and debating issues of the highest national relevance, STJ is a court in which the judicialization of politics takes place with much less intensity. That is, the matters dealt with by STJ do not interfere directly and with such force in the other Branches, as seen with STF owing to the disputes around the interpretation of the Brazilian Constitution of 1988.

Therefore, the relevance of the legal question cannot be, in my opinion, a political and absolutely discretionary selection filter. Georges Abboud and Matthäus Kroschinsky also express the same concern and, drawing a parallel with the general repercussion, warn that “the argument of relevance cannot be converted into a discretionary filter”31.

It is interesting, in this sense, the insertion of some minimally certain criteria for a better characterization of relevance, which is achieved, to a certain extent, with the establishment of objective presumptions.

The establishment of an economic criterion, although debatable in other aspects, is reasonable as it removes the broad discretion of the selection filter. It bears mentioning that the final wording of the norm established a value much higher than the substitutes presented so far, which predicted between 150 and 200 minimum wages, which will certainly generate a much greater impact on the selection of appeals.

In these cases, I understand that it is not enough to merely adjust the amount in dispute at the time of filing the appeal, as provided for in Article 2 of Constitutional Amendment No. 125/22. The appellant should prove the framing of his special appeal in this objective hypothesis, dedicating a specific chapter of their appeal brief to demonstrate the amount in dispute, especially in cases where it is not yet possible to quantify it accurately — which, incidentally, is very common in lawsuits with pecuniary compensation to be determined only in liquidation of judgment.

The presumption provided for in item V has already raised questions in the opinion of jurists, especially regarding the lack of definition of the term “dominant caselaw”32. About the issue:

“It is evident that the dominance of caselaw cannot be measured in a purely quantitative way; the true importance that an orientation acquires within a court stems from its possibility of translating an effectively mature position on a certain subject. For our part, we understand that the conformation of a true dominant caselaw depends on some minimum and cumulative criteria: (1) at least two decisions by a body effectively representative of the institutional position of that court; (2) address the same legal issue; (3) technical discussion regarding the issue; and (4) clear statement of the facts and reasons that led the court to issue its ruling”33.

As a matter of fact, the legal provision lacks certainty as to the concept of dominant caselaw. But given the progress that our legal system has had regarding the observance of binding decisions, we can, in line with what was also said by the authors mentioned above, use as a parameter the list of Article 927, of the Code of Civil Procedure for such purpose.

In this respect it is recalled that the Constitutional Amendment did not exhaust the situations of presumption of relevance, allowing, in item VI, the establishment of new hypotheses by the ordinary legislator. When commenting on this matter, Cruz and Tucci34 point out that “the wording also leaves open the list, in Item VI, for ‘other hypotheses provided for by law,’ or even — I presume — for situations that will certainly arise out of social dynamics, such as, for instance, those relating to personality rights (exactly as it occurs with the so-called “mitigated void-for-vagueness” of Article 1015 of the Code of Civil Procedure).”

In any case, even if certain hypotheses of presumption of relevance are foreseen, it will still be necessary to enact a regulatory law for this new filter. Not only to improve the concept of relevance, but also to establish important procedures (such as appealability, effect in similar cases, etc.) and predict their effects on the system of binding decisions as a whole, just like it was done with general repercussions in the new code of civil procedure.

It is worth noting that the need for legal regulation has generated a certain doctrinal discussion about the validity of the norm. Although Article 3 of Constitutional Amendment No. 125/22 states that “this Constitutional Amendment enters into force on the date of its publication,” Leonardo Carneiro da Cunha states that “the requirement [of demonstration of relevance] should only be made for cases in which the appealable decisions are rendered after the beginning of the effectiveness of the law that will regulate the relevance of the federal question”35. On the other hand, there are those who argue that the Constitutional Amendment already has immediate effectiveness for the situations of presumption addressed in its Article 236.

In conclusion, it can be said that the relevance of the legal question will certainly play an important role in making STJ’s work more efficient and reducing the Court’s burden, just as the general repercussions did on STF37. But it is important to warn that it will not be a miracle solution. In particular, attention is drawn to the increasing number of appeals distributed and decided by the Criminal Law panels, which will not suffer as much impact owing to the presumption provided for this matter and because they judge countless habeas corpus.

1. Paragraph 3 of Article 102, added by Constitutional Amendment No. 45/2004, states that the general repercussion should be demonstrated “in order for the Court to examine the admission of the appeal.”

2. Paragraph 2, of Article 105, added by Constitutional Amendment No. 125/2022, establishes that the relevance of legal question should be demonstrated “in order for the admission of the appeal to be examined by the Court.”

3. BOBEK, Michael. "Quantity or Quality? Reassessing the Role of Supreme Jurisdictions in Central Europe." The American Journal of Comparative Law, vol. 57, no. 1, 2009, pp. 33-65. JSTOR, JSTOR, www.jstor.org/stable/20454663, p. 37).

4. RAMOS, Manuel Ortells. “La selección de asuntos para su acceso a la casación en derecho español: las técnicas de "unificación de doctrina" y de "interés casacional", available at: https://www.uv.es/coloquio/coloquio/ponencias/c6ort.pdf

5. On the matter: “It is reasonable to set the distinctive criterion in the object of the appeal. The extraordinary appeal would be the one with an immediate object of protecting the law (incidentally protecting the right), unlike the ordinary, which directly aims at the judicial ruling pertaining to the protection of the interests of the parties in dispute, having as its object the right. It remains clear, therefore, the also public purpose and interest, on top of the private ones, to ground the range of appeals that exist today.” PAIXÃO CÔRTES, Osmar Mendes. “Recursos para os tribunais superiores: recurso extraordinário, recurso especial, embargos de divergência e agravo”, 4ª ed., Brasília: Gazeta Jurídica, 2017.

6. NERY JR., Nelson. “Princípios Fundamentais”, 3ª edição, Editora Revista dos Tribunais, São Paulo: 1996, p. 246.

7. BERMUDES, Sérgio. “Comentários ao código de processo civil”, 2ed. São Paulo: Editora Revista dos Tribunais, 1977, v. 7, p. 34.

8. REsp (Special Appeal) No. 1.721.705/SP, Reporting Justice NANCY ANDRIGHI, THIRD PANEL, tried on 08/28/2018, DJe (Electronic Court Gazette) Sep. 6, 2018.

9. In this sense, Lênio Streck and Georges Abboud state that “it is not correct to present the common law only as a non-codified law with a typically jurisprudential basis. In fact, most of the rules of law that apply every day in England and the United States are rules sanctioned by the Legislature or the Executive. In the United States, there is even talk of a phenomenon designated by the neologism of staturification of law, in allusion to the term statute, which means law in a formal sense.” “O que é isto - o precedente judicial e as súmulas vinculantes?, 2ª ed. Porto Alegre: Livraria do Advogado Editora, 2014”, p. 28.

10. Evidently, the decline of positivism and the rise of caselaw did not happen abruptly. In Germany, for instance, it took place in three stages: first with the Historical School, with criticisms aimed primarily at codification; then, the phase of affirmation of jurisprudential law, marked by the free law movement (Freirechtsbewegung) and which reached its heyday in the third decade of the 20th century; the third period is located in the new moment of Jusnaturalism with the end of the Second World War. In France, François Geny was a key player in this movement through his work Méthode d'interprétation et sources en droit privé positif: essei critique, published in 1899. In his study, Geny criticizes the School of Exegesis, defending the recognition of caselaw as a source of law and the creative power of the judge (the French author outlines the figure of the discovering judge, as opposed to the executing judge).

11. “Subsequently, no less relevant is the finding that the legislative fabric often presents margins of openness. In order to make the provision adaptable to concrete situations or to keep it current, notwithstanding the passage of time and social changes, the legislator is more often led to adopt elastic, flexible and nuanced legislative techniques. The legal culture, in turn, has been committed, for at least a century, to analyzing the various forms of openness to the law and to exploring subtle, but not always clear, distinctions, such as valve-concepts (Ventillbegriffe), legal standards, general clauses (Generalklauseln), discretionary concepts (Ermessensbegriffe), indeterminate legal concepts (unbestimmten Rechtsbegriffe). Recently, the expression “vagueness of norms” has also become widespread. We will have the opportunity to return to these profiles later on, for the moment it is enough to point out that it is a complex of legislative techniques through which the judge ends up delegating choices that the legislator cannot or does not want to make.” (PICARDI, Nicola. Jurisdição e Processo. Rio de Janeiro: Forense, 2008, p. 7). On the topic, see also DANTAS, Bruno; ALVIM, Teresa Arruda. "Recurso especial, recurso extraordinário e a nova função dos tribunais superiores no direito brasileiro”, 3ª ed., São Paulo: Revista dos Tribunais, 2016, p. 209-235.

12. “The disparity of orientation regarding the meaning of the legal norm can occur when the judicial decision should be based on legal texts that, in principle, should not raise interpretative doubts, but, above all, when the judicial decision is based on legal principles, rules with vague or undetermined content and general clauses. In this case, a peculiar mode of action is required from the judge.” (MEDINA, José Miguel Garcia. Integridade, estabilidade e coerência da jurisprudência no Estado Constitucional e Democrático de Direito: o papel do precedente, da jurisprudência e da súmula, à luz do CPC/2015. Revista dos Tribunais. v. 974. Dec./2016. Electronic access.).

13. Regarding the practical importance of precedents, Taruffo notes: "In the pleadings, mainly proceedings before supreme courts, precedents are usually quoted and discussed. Even in France, where precedents are not cited or quoted by the highest courts themselves, they are normally used and quoted by counsel. The knowledge and the analysis of precedents is fundamental for any practicing lawyer. From this point of view, no significant differences exist in modern systems" TARUFFO, Michele. “Institutional factor influencing precedents” in MACCORMICK, Neil; SUMMERS, Robert (ed.) Interpreting Precedents: A Comparative Study (Applied Legal Philosophy). Aldershot: Ashgate/Dartmouth, 1997, p. 457.

14. CÔRTES, Osmar Mendes Paixão. “Recursos para os tribunais superiores: recurso extraordinário, recurso especial, embargos de divergência e agravos”, 4ª ed., Brasília, DF: Gazeta Jurídica, 2017, p. 25-44.

15. “In this regard, a Court of interpretation or attribution of meaning to the law does not have the function of correcting decisions, but of collaborating — including with the legislature — for the development of the law. The production of a fair decision, with regard to the solution of disputes, is up to judges and ordinary courts. Thus, the Court entrusted with developing federal law does not have to judge any and all dissatisfaction at a so-called misinterpretation of the appellate court. It should, on the contrary, have at its disposal a technique or filter that allows it to single out the appeals suitable for the exercise of its function” (MARINONI, Luiz Guilherme. “Da Corte que declara o ‘sentido exato da lei’ para a Corte que institui precedentes”, Revista dos Tribunais: RT, v. 103, n. 950, p. 165-198, Dec. 2014). Along the same lines, Eduardo Oteiza asserts: “The first is linked to the public purpose of the National Courts of higher instance, in the task of granting coherence to the legal system. Caselaw, understood as the influence of some judgments on others, acquires a particular dimension when it comes from a Court of last instance. These Courts are at the apex of the interpretation system on certain normative contents. They are in charge of giving a final reading on the scope of the Constitution and the legislation; they guide the entire system and the institutions that make it up, as it is the maximum expression of the living law of a State; constitute a transcendent factor, which plays a fundamental role, which furthers the consistency of the system. There is a general interest in the interpretation of the law carried out by the Courts, which is in permanent friction with the right of the parties to submit the case to successive instances of review. (OTEIZA, Eduardo. A função das cortes supremas na américa latina. História, paradigmas, modelos, contradições e perspectivas, Revista de Processo | vol. 187/2010 | p. 181 - 230 | Sept. / 2010)

16. MITIDIERO, Daniel. Cortes superiores e cortes supremas: do controle à interpretação, da jurisprudência ao precedente. 2. ed. São Paulo: Revista dos Tribunais, 2015, p. 37)

17. "There are structural factors that should be present to allow a Court to correctly carry out its mission. Hence, issues such as the number of judges, the number of cases they can judge, the time required for an appropriate discussion of the content of decisions, the selection of issues on which the Court will rule, the participation of interested parties in the process prior to rendering decisions, the publicity of the debates, the clarity of the criteria developed, the ability to disseminate them, and the possibility of understanding the new scope of a normative issue, constitute some of the aspects to be fulfilled in order to provide the Court with the instruments that allow it to develop its function." (OTEIZA, Eduardo. A função das cortes supremas na américa latina. História, paradigmas, modelos, contradições e perspectivas, Revista de Processo | vol. 187/2010 | p. 181 - 230 | Sept. / 2010)

18. DALLA, Humberto. O microssistema de formação de precedentes judiciais vinculantes previsto no novo CPC, Revista de Processo - REPRO, Vol. 41 Nº 259, Sept/2016.

19. https://www.stj.jus.br/webstj/Processo/Boletim/verpagina.asp?vPag=0&vSeq=371

20. “It is humanly impossible for the thirty-three justices of the Superior Court of Justice to judge — minimally well — the 386,426 cases distributed in 2014 alone (in this same year, an impressive 283,492 were remanded). Let alone the collection of pending actions that accumulate each year. This impossibility is a fact, which does not depend on the good will of the justices, their intellectual capacity or their willingness to work, their number of assistants, the research and information technology infrastructure at their disposal. With such a workload, it is even unfair to accuse STJ of not carrying out its constitutional mission of “unifier and guardian of nonconstitutional federal law” satisfactorily. Oppressed by piles and piles — physical and virtual — of processes, which grow every day, justices, snowed under a Sisyphus-like work, end up not reading, studying and debating the cases as they should. Out of such anguish, to make matters worse, comes the rush, and with the rush the evils that today, from the point of view of those subject to their jurisdiction, compromise the court’s work: often bad decisions, ill-founded, precarious caselaw. and even the phenomenon that came to be known as “defensive caselaw.” These are inevitable deformations of the exercise of the jurisdictional function by the Superior Court of Justice, inescapably caused by the excess of work to which the court is submitted. Justices do not do this intentionally. It is inevitable. There is no effective remedy against these evils other than reducing the amount of work. The rest (increase in the number of justices, cultural changes, for instance) are just stopgap measures. Indeed, this is the lesson that comparative law teaches us. There is no superior court in the world that receives such a number of lawsuits and that, at the same time, remains functional and faithful to its constitutional mission.” BENEDUZI, Renato. “Repercussão geral no recurso especial por analogia”. Available at: https://www.academia.edu/33061592/Repercussão_Geral_no_Recurso_Especial_por_analogia?auto=download.

21. (AgRg (Internal Interlocutory Appeal) under AREsp (Interlocutory Appeal under Special Appeal) No. 113.818/RS, Reporting Justice LUIS FELIPE SALOMÃO, FOURT PANEL, tried on Sep. 20, 2012, DJe Sep. 28, 2012).

22. SPECIAL APPEAL NO. 201.666 - SP (2012/0142398-5), date of issuance: Aug. 30, 2012.

23. (AgRg (Internal Interlocutory Appeal) under AREsp (Interlocutory Appeal under Special Appeal) No. 70.743/MG, Reporting Justice MASSAMI UYEDA, THIRD PANEL, tried on Sep. 18, 2012, DJe Oct. 2, /12).

24. INTERLOCUTORY APPEAL NO. 784.979 - RS (2006/0132507-7), Justice HUMBERTO GOMES DE BARROS, Aug. 24, 2006.

25. SPECIAL APPEAL NO. 131.933 - SP (2011/0294544-8), (Justice RICARDO VILLAS BÔAS CUEVA, Jun. 28, 2012).

26. “It is inadmissible that STJ continues to gather to try habeas corpus of monkey, giraffe import tax, ownership of the parrot Taffarel. It is not reasonable that a court the size of ours dedicates itself to this. And other issues of greater economic relevance and social impact are not subject to a thorough investigation owing to the volume of cases we have here to try. This should not be confused with any need to hamper the exceptional instance that is STJ, but to make it a very exceptional instance. This has been improving with the repetitive precedents. Suffice it to refer to one case: the last one that we tried, on intervening limitation, whereby it is estimated that 25 million cases will end. This means a quarter of the national procedural collection. This is the task of STJ.” 

27. According to Marco Antonio Rodrigues: “Extraordinary appeals, in turn, as they intend to protect the law, have as their immediate purpose the discussion of the correct application of a legal rule, that is, the preservation of the legal system. As part of this type of appeals, there are special and extraordinary appeals. The latter mechanisms cannot be used by anyone due to any dissatisfaction with the precedent: their purpose will be to seek the proper application of the law, even if indirectly this represents protection of the procedural interest of the appellant” (RODRIGUES, Marco Antonio dos Santos. “Manual dos recursos, ação rescisória e reclamação”, 1ª ed., São Paulo: Atlas, 2017, p. 20).

28. “Taruffo, when analyzing the rationalization of the use of the revocation remedy and, especially, the revocation interest as a prerequisite for its admissibility, states that the Spanish Superior Court has become — or has legal parameters to become — “una vera y propia corte de precedents.” This means, obviously, that the Brazilian Superior Court of Justice is also fully capable of exercising its constitutional mission and the function of a Court of Precedents.” MARINONI, Luiz Guilherme. “Da Corte que declara o ‘sentido exato da lei’ para a Corte que institui precedentes”, Revista dos Tribunais: RT, v. 103, n. 950, p. 165-198, Dec. 2014).

29. TARUFFO, Michele. “Institutional factors influencing precedents” in MACCORMICK, Neil; SUMMERS, Robert (ed.) Interpreting Precedents: A Comparative Study (Applied Legal Philosophy). Aldershot: Ashgate/Dartmouth, 1997, p. 445/446.

30. The argument of the relevance of the federal question existed even before the creation of STJ, having been introduced by a regulatory amendment by STF and later by Constitutional Amendment No. 07/77, which again amended Paragraph 1 of Article 119 of the Brazilian Constitution.

31. https://www.conjur.com.br/2022-jul-20/abboud-kroschinsky-arguicao-relevancia-resp

32. On the subject, Marcelo Mazzola and Darci Ribeiro present an interesting approach on how artificial intelligence can help in the classification and identification of “dominant caselaw.”

33. Notes on the new argument of relevance in a special appeal.

34. https://www.conjur.com.br/2022-jul-19/questao-federal-admissibilidade-recurso-especial-stj

35. Relevance of federal questions in special appeal and intertemporal law.

36. “An interesting question to be faced is regarding the immediate effectiveness of the constitutional change, especially considering the excerpt, contained in Paragraph 2, of Article 105, of the Brazilian Constitution of 1988 (as amended by Constitutional Amendment No. 125), that the Relevance of legal question will be assessed under the terms of the law. In point of fact, there is a certain contradiction concerning Article 2 and 1 (especially with regard to the inclusion of Paragraph 2, Article 105, of the Brazilian Constitution of 1988) of the said Constitutional Amendment, considering that, in the former, there is an indication of immediate effectiveness, while in the latter there is mention of the need for a law. As concerns the issue, I understand that, when it comes to situations objectively included in Article 105, Paragraph 3, of the Brazilian Constitution of 1988, effectiveness is immediate, without prejudice to the future law establishing (other) subjective and procedural aspects for demonstrating the Relevance of the Nonconstitutional Federal Issue. In a simple conclusion, even admitting that there is a contradiction between the said provisions, which can lead to interpretative divergence, I think that the alteration is immediately effective in the five hypotheses addressed in Constitutional Amendment No. 125, without prejudice to others that may be regulated in future law." Available here.

37. Eduardo Arruda Alvim and Igor Martins da Cunha share the same understanding: "If, on the one hand, it is true that the general repercussion was not, by itself, enough to solve all the existing problems in the performance of STF in the trial of extraordinary appeals (especially the still high number of extraordinary appeals pending judgment and a certain delay in dealing with issues submitted to trial owing to the general repercussion system), on the other hand, it is possible to state that the said filter was clearly an improvement in the sense of bestowing the jurisdiction exercised by STF traits closer to that inherent in a Supreme Court. It is evident, therefore, that the creation of a system similar to that of the general repercussion for STJ is a measure that will possibly have great and positive repercussions on the court’s performance. It will ensure that it can effectively establish, with highly qualified attributes, the latest understanding of federal law, handing down effectively paradigmatic decisions that guide caselaw at the national level.”

Public Inquiry No. 06/2022 discusses regulation of the Maritime Labor Convention

• By Livia Sanches Sancio | Georges Hajj 

• June 22, 2022

On June 21, 2022, the Ministry of Labor and Social Security published public inquiry No. 6/2022 regarding the normative proposal to regulate the provisions of the Maritime Labor Convention — CTM/2006 (MLC), enacted on April 9, 2021.

The proposed regulation deals with matters such as certification procedures for ships flying the Brazilian flag; operation of recruitment and placement services for seafarers established in Brazilian territory; and a system for dealing with complaints on board.

The inquiry will be available for a period of 30 days and contributions can be made directly on the platform: https://www.gov.br/participamaisbrasil/regulamentaconvencaotrabalhomaritimo.

At the end of the inquiry, the suggestions will be reviewed by the Secretariat of Labor for the preparation of the final wording proposal.