Admissibility analysis in special appeals: relation with the principle of prioritizing the judgement of case merits regarding the constitutional model of Brazilian process

Abstract

The goal of this article is to analyze the evolution of civil procedural law in order to verify the admissibility analysis of Special Appeals in the Superior Court of Justice. The article will discuss the principles of wide access to a fair judicial order, the right of full defense and the right to appeal, the right of judicial review, the principle of effectiveness and procedural economy, in order to offer a counterpart to the infamous defensive case law created by Superior Courts. The method used by the author is the instrumental-dogmatic research of doctrinal and jurisprudential, in order to create a dialogue between theory and practice of procedural law. As a result, it was observed that the constitutional principles aimed at achieving satisfactive merit decision by tribunals, while the defensive case law is not a mere tribunal’s accident, but a way found by the Superior Court of Justice to restraint the amount of its cases. As a conclusion, in specific cases, some judges have diverged from the court, however, in order to keep uniform precedents, personal opinions are set aside when creating the court’s jurisprudence. Besides, it is considered undesirable an overload of demands since there is a risk of compromising the juridical order. Notwithstanding, there is also the political matters that obstruct the development of propositions to emend the Brazilian constitution, those that target to insert a new requirement regarding the demonstration of ordinary laws’ relevance.