A fazenda pública em juízo e a tendência de desaparecimento do reexame necessário

Abstract

With the present study, it is aimed to investigate the historical origin and the development of the necessary re-examination institute into the Brazilian civil procedural law, with emphasis in its juridical nature, and, at the end, assess the institute"s constitutionality and convenience in the current normative and social context. The present study remind us, at baseline, about the inquisitor system of the Lusitanian penal procedural from the medieval period which would had appeared under the name "ex officio appeal". Under this perspective, the institute"s introduction into Brazilian penal procedural system, by mid-nineteenth century, is analyzed with a special attention to the most relevant procedural aspects of the institute"s application in the patriotic courts. Finally, in view of the drawn observations about the constitutionality and the convenience of the obligatory re-examination, it is studied the institute"s tendency to disappearance that was observed in recent procedural reforms, including at the New Code"s Draft of the Civil Procedural which is going through the procedure at the National Congress. The tendency is also an object of analysis in comparison to the proposed alternatives by the doctrine for procedural institute"s replacement which was inherit from Portugal, been obtained, at the end, the conclusion that better would be the national legislator by replacing the institute by procedural tool equally skilful to the collective interests defense, without simply extinguishing the prerogative.