Prequestionamento: uma análise do instituto à luz do princípio da segurança jurídica abraçado pelo novo código de processo civil

Abstract

This work will approach the pre-questioning beyond the principle of legal certainty, highlighting how the confused treatment of such institute makes difficult the management of special appeals. The conceptual difference between Brazilian Superior Court of Justice (STJ) and Brazilian Superior Federal Court (STF) regarding the definition of implicit pre-questioning; the conceptual confusion made by STF, which has been dealing with two forms of pre-questioning, implicit and fictitious, as if both were synonymous; and the current jurisprudential instability inside the Brazilian Superior Federal Court regarding the acceptance of fictitious form of pre-questioning, despite such kind has always been admitted in this Court from an interpretation that's opposite from 356 binding precedent of STF, all of these will be reviewed. After that, it will be emphasized that such instability about pre-questioning, especially in the Supreme Court, isn't inconsistent with the provisions of the Civil Procedure Code of 2015 (CPC/15), which brings the need to maintain the integrity of jurisprudence on behalf of legal certainty, the protection of legitimate expectations and equality. For conclusion, some CPC/15 provisions that handle with regulatory law, including any changes in consolidated understandings, precedents or precedents (“overruling") will be analyzed too.