Ação rescisória com fundamento em inconstitucionalidade: pressupostos e limites para a desconstituição da coisa julgada (arts. 525, §15 e 535, § 8º do CPC/2015)

Abstract

This study aims to analyze the assumptions and limits for proposing the rescission action based on a rule later held by the Federal Supreme Court to be unconstitutional in concentrated or diffuse control, mentioned in articles 525, §15 and 535, § 8 of CPC/2015. In order to do so, the research started with the analysis of the concept of legal certainty in the Rule of Law and the institute of res judicata as an instrument for its implementation. Next, the rescission action was examined as a typical means of deconstitution of res judicata, seeking, based on its historical conception, to compare the rescindibility regime with the vice of nullity and injustice of decisions. In this line, it was intended to diagnose the defect that affects the decision that can be fought by rescission action based on manifest violation of the legal norm and based on supervening unconstitutionality. Finally, the objective was to examine, based on the movement for the “relativization of res judicata”, the legislative repercussions that were imposed in CPC/1973 to CPC/2015, in order to understand to what extent res judicata can be violated in the face of a subsequent decision in control of constitutionality by the Federal Supreme Court through rescission action, what its assumptions are, what its basis is, within what timeframe and what its limitations are.