O direito-garantia fundamental da coisa julgada: coisa julgada injusta e coisa julgada inconstitucional

Abstract

In recent years the institute of the considered object has been very questioned, it refuses its nature of basic right-guarantee, it is criticized when it is exaggerated on the dogma of the unattainability, it defends its relativity, flexibility or disrespect, everything under the argument of that unfair or unconstitutional sentences cannot be perpetuated in the jurisprudence. In this set, thesis and theories fight, if they modify laws, if it weakens a basic right. It is in the field of the basic rights and its relativity that this work is developed. The central issue of the research consists in trying to answer to the question: what is the difference between the unfair considered object to the unconstitutional considered object? Regarding this problematic, one considers studying the basic right-guarantee of the considered object and the relativity of institute facing happening of the unjust considered object and the unconstitutional considered one. The biggest aim is to understand until what point a right-guarantee, considered basic and protected for the stony clauses, can be moved away and to which are the circumstances that justify such removal. It adopts essentially hypothetical-deductive an epistemologyc method of base, a dogmatic boarding and an analytical-description procedure, without leaving to appeal to the historical and comparative methods. It appeals to the indirect documentation, taken the handle for documentary and the bibliographical research. It has as theoretic references the postulates of the theory on the basic rights from Robert Alexy and of the pure theory of the right from Hans Kelsen. It analyzes the concept and the evolution of the institute of the judged object, it reconstructs the passage of the relativity, identifies the institute as a basic right-guarantee and its relativity. From the structure of the constitutional rules, it identifies the unfair considered object as a collision of basic rights and the unconstitutional considered object as a conflict of rules of different hierarchic steps, different problems that demand distinct solutions. It concludes that the disrespect of the basic right-guarantee of the considered object is only possible in the hypotheses of unfair considered object, due to the relative character of the basic rights and to the mechanism of application, the consideration. In the hypotheses of unconstitutional considered object, as the definitive character of the rights contained in the rules does not admit consideration, the solution of the conflict passes for the criteria of the validity, that always leads to the elimination of one of the conflictuous rules. To the end, it analyzes the consequences of the pronunciation of unconstitutionality for the Supreme Federal Court on the basic right-guarantee of the judged object, to conclude for the submission of such normative decision to the command contained in the article 5º, XXXVI of the Federal Constitution.