From the edition of the new Code of Civil Procedure (CPC) and especially by the positiveity of fundamental norms of the civil procedure, there is no room for the technique of defensive jurisprudence[1] continue to be applied by the higher courts – especially the Superior Court of Justice (STJ) – as a way of inadmitting appeals, preventing a case from reaching the just and effective solution of the merits of the case.

Defensive jurisprudence is the practice adopted by the higher courts, in particular the Supreme Court, of not knowing resources by overvaluing the formal admissibility requirements.[2] Often, this measure undermines the constitutional guarantee of access to justice, understood as the right to a just and effective solution to the merits of the case.

The new procedural system inaugurated by the CPC privileges, in its articles 4th and 6th, the principle of the primacy of judgment on merit, which reinforces the constitutional guarantee of access to justice.[3]

Despite the effort and normative advance of the CPC, the technique of defensive jurisprudence persists in the day-to-day of the courts, with the application of sums of jurisprudence that impose misplaced decisions of inadmission of appeals.

Among these summations stands out the 182 of the Supreme Court, which recommends that "it is unfeasible the aggravation of Art. 545 of the CPC that ceases to specifically attack the grounds of the aggravated decision". Edited still under the old CPC, this summary continues to be applied by the STJ. In a trial of embargoes occurred in 2019, the 4th Tuma of the Supreme Court reaffirmed the "need for the party, in internal injury brought against the rapporteur's monocratic decision given in special appeal, imposes all the foundations of the aggravated decision".[4]

According to Summary 182, the applicant has the procedural burden of challenging all the grounds of the aggravated decision, which does not entail any exception. Based on this understanding, the Special Court of the Supreme Court, in the judgment of EAREsp 746.775/PR, on 11/30/2018, decided that the special appeal injury must contest all the grounds of the decision of recursal default, even if the grounds are autonomous.

However, after this trial, there was no consensus among the ministers on what would be the fate of possible internal injury brought against the monocratic decision of inadmission given in the grievance on special appeal.

In view of this, two currents were formed: the first understood that the "party could, in the case of internal injury, fail to challenge an autonomous foundation of the aggravated decision, so that the matter would only be included by the preclusion";[5] for the second current, the same orientation applied to the disease on a special appeal should be adopted in the internal injury.[6]

On 10/20/2021, the Special Court of the Supreme Court again addressed the subject, in judging REsp 1.424.404/SP, and acknowledged that "the jurisprudence of this Court must prevail in the sense that the absence of challenge, in the internal grievance, of an autonomous chapter and/or independent of the rapporteur's monocratic decision — given when assessing special appeal or grievance on a special appeal — only entails the preclusion of the uncontested matter,  not attracting the incidence of Summary 182 of the STJ".[7] Therefore, the understanding of the first current was adopted.

According to the Special Court of the Supreme Court, "the decision that does not admit the Special Appeal has as its exclusive scope the assessment of the assumptions of recursive admissibility. Your device is unique." [8] In other words, even if the statement of reasons make it possible to conclude that one or more causes prevent the judgment of the merits are not autonomous chapters, which is why it is necessary to challenge all its grounds.

On the other hand, it was concluded that , "when the rapporteur decides monocratically the Special Appeal or its Grievance, he does so by examining each plea in isolation, giving rise to autonomous chapters, which allows the party the freedom to define which grounds will be challenged, so that the omission entails only the preclusion of the matter, but does not prevent its knowledge by application of Summary No. 182/STJ".[9]

The conclusion of the trial is a encouragement for those who advocate a lower formalism and expect, increasingly, decisions of the Supreme Court that corroborate the constitutional guarantee of access to justice.

 

[1] BARBOSA MOREIRA, José Carlos. Illegitimate restrictions on knowledge of resources. In: BARBOSA MOREIRA, José Carlos. Procedural Law Issues. Ninth grade. São Paulo: Saraiva, 2007, p. 280-281. The renowned jurist also asserted that: "the travo of dissatisfaction left by decisions of not knowledge is inevitable; they resemble meals in which, after the appetizers and the hors d'oeuvre, if they said the guests without the announced main dish" (In BARBOSA MOREIRA, José Carlos. Illegitimate restrictions on knowledge of resources. Revista Forense, Rio de Janeiro, v. 386, year 102, 2006, p. 155).

According to the jurist, this is the technique of "overvaluing formal requirements to derail the assessment of recursal merit", which should not be tolerated from the new code of essentially instrumental character, modern and concerned with fending off excessive and uncommitting formalisms.

[2] Part of the doctrine adopts a more severe position, such as José Rogério Cruz and Tucci, who points out: "It is true that certain obstacles to the admission of resources to the higher courts are the result of ingenious construction, which maintain some hermeneutic coherence with the procedural rules in force. However, there are, in significant numbers, other barriers that are most identified to 'Praetorian perversity', which have no plausible reason to subsist in the framework of a civilized legal system, committed to the effectiveness of judicial protection. (...) It should be emphasized that this orientation, as is the case in the general ity of the so-called defensive case-law, shows that the applicant's substandright does not have the slightest relevance to the court. I understand, with due respect, that such a position represents an inably undisputed denial of jurisdiction. Indeed, with regard to the Supreme Court – the self-styled 'Citizenship Court' – despite some flexibility observed in recent times, it continues to use questions and stratagems, in the effort of ruling out the judgment of the merits of the appeal, to the detriment of its constitutional mission in favor of the unity of the application of federal law" (CRUZ and TUCCI,  Jose Rogério. One suffices to perversity of defensive jurisprudence. São Paulo, 2014. Available in: www.conjur.com.br/2014-jun-24/basta-perversidade-jurisprudencia-defensiva. Accessed: 3/2/2022.

[3] THEODORO JUNIOR, Humberto. Code of Civil Procedure Annotated, 22nd edition, Rio de Janeiro: Forense, 2019, p. 8).

[4] See news published on the STJ website about the application of the summary, available at: https://www.stj.jus.br/sites/portalp/Paginas/Comunicacao/Noticias/Em-agravo-interno--parte-deve-impugnar-todos-os-fundamentos-da-decisao-agravada-.aspx. Accessed: 17/12/2021.

[5] Crumbs, "Victory of the law and defeat of the defensive jurisprudence in the Supreme Court!". Available in: https://www.migalhas.com.br/depeso/353646/vitoria-da-advocacia-e-derrota-da-jurisprudencia-defensiva-no-stj

[6] FELÍCIO, Gabriel Bartolomeu and ADAMEK, Daniela Pina von. Victory of the law and defeat of the defensive jurisprudence in the Supreme Court! Crumbs website. Available in: https://www.migalhas.com.br/depeso/353646/vitoria-da-advocacia-e-derrota-da-jurisprudencia-defensiva-no-stj

[7] See decision in full content on the jusbrasil website. Available in: https://stj.jusbrasil.com.br/jurisprudencia/1317326990/embargos-de-divergencia-em-recurso-especial-eresp-1424404-sp-2013-0230570-3/inteiro-teor-1317327025

[8] ditto

[9] Ditto