A natureza do rol do artigo 1.015 do Novo Código de Processo Civil

Abstract

The present study aims to study the nature of the role of article 1.015 of the New Code of Civil Procedure and determine the appropriateness of the appeal against an instrument. In order to limit the use of this means of challenge, the legislator opted to adopt taxation and, consequently, only interlocutory decisions present in the mentioned provision will be aggravated. This new regime has aroused several criticisms from the doctrine and jurisprudence, as they understand that these restrictions may cause losses to the parties, who will have to wait until the time of the appeal to question non-aggravating interlocutory. In this context, the forensic literature presented other proposals for reading Article 1.015, such as, for example, extensive interpretation and exemplary interpretation. However, in 2018, the Superior Court of Justice decided to adopt the theory of mitigated taxation, which allows the interlocutory appeal to be filed in cases that are not provided for by law, provided the urgency requirement is proven. Thus, it is noted that the Court expanded the appeal based on a vague criterion, the definition of which depends on the judge's subjectivity. The choice of this legal thesis by the STJ has the consequence of weakening procedural predictability and legal certainty, since the parties will no longer have the clarity of the measures to be taken during the resolution of the dispute. It is worth mentioning that the application of the mitigated taxation theory did not provide relevant benefits to the appeals system, given that the Court did not provide an exact definition of the element of urgency. Thus, the authorization to use the interlocutory appeal outside the legal provision has occurred according to the nature of the hostile interlocutory. Given the above, this research will proceed to a detailed analysis of the other currents proposed by the doctrine, in order to understand which alternative is most compatible with the constitutional and procedural principles.