O efeito devolutivo dos recursos extraordinário e especial: juízo de revisão e limites da devolução

Abstract

This research refers to the analysis of the devolutionary effect of special and extraordinary appeals, especially the object of objections and the existing limitations, including dogmatic ones, to the appreciation of the arguments deduced (or not) in the appeal directed to the ad quem tribunal. The relevance of the theme is necessary insofar as the recent positivization of Precedent nº 456 of the Federal Supreme Court in the commands of art. 1,034 of CPC/2015 revealed, even more clearly, that it is up to the superior courts to review the merits “applying the right to the species”, when extraordinary and special appeals are admitted. The limits of the devolution of the arguments deduced in the cause, however, are not detailed by the procedural legislation. The present work, then, seeks to analyze what are the foundations and what questions are available to the ad quem tribunal at the time of exercising its activity of “judging the cause, applying the right to the species”, in the exercise of its dikelogical function. It is necessary to understand as premises, therefore, the functions performed by the superior courts, identifying the models of existing vertex cuts and what were the influences that culminated with the Brazilian hybrid system. Certainly, we will have to work with the devolution effect related to ordinary appeals, in particular, the broad and classic devolution related to the appeal. The subjective, horizontal and vertical dimensions make it possible for us to understand the extent and depth of the foundations returned to the ad quem tribunal, including a real interest in the “translative effect”, to those who consider it that way. It is also essential to understand the outstanding characteristics of exceptional appeals, especially the degree of cognition restricted to these impugnant species and, in particular, the flawed distinction between a matter of fact and a matter of law. Finally, the research went on to detail the way in which exceptional appeals are judged and, finally, what the positive application of the right to the species consists of and what questions were posed to the superior court to analyze at the time of its decision-making activity.