Coming Into

Abstract

The res judicata is the institute that provides security to all legal relationships brought to the consideration of the Judicial Power. The res judicata provides immunization for the decision handed down by the Judiciary. The mandatory, as a fundamental characteristic of the jurisdiction provided by the state, only has full validity if what was already decided cannot be changed by subsequent decision. However, the protection afforded by the res judicata cannot be bigger than what was actually decided ( res judicanda ), whose boundaries are contained within the dispute itself. Thus, only the part that changes the reality of the subjects of the process is important for the stabilization of res judicata , which is the dispositive. But, the reasons that led the Judiciary to come to their conclusions are not reached by the authority of res judicata . The fundaments have close relation to the causa petendi of the author and the causa excipiendi of the defendant. If it was allowed that new arguments, that have the power to change the causa petendi , could be deducted in new demand, since not deducted in the first demand, the legal system would be reduced to a huge legal unsafety. This study aims to present what material of the first process is irrelevant for further discussion, even if not alleged. Therefore, for a correct understanding of the Preclusive coming into force of res judicata , it is necessary to examine (i) others related legal institutions, which are res judicata and preclusion; (ii) objective limits of res judicata; (iii) the position of the problem posed by the wording of the text of the art. 508 of the Civil Procedure Code, and, with it, the doctrinal and jurisprudential divergence exists on what would be the real scope of the Preclusive coming into force of res judicata ; (iv) which solution should be given in order to correctly apply the Preclusive coming into force of res judicata ; (v) what area of expertise and what issues are subject to the Preclusive coming into force of res judicata; (vi) the Preclusive coming into force of res judicata judged as a way to prevent other demands incompatible with the final decision being proposed and, finally, (vii) the treatment given to the Preclusive coming into force of res judicata by the new Code of Civil Procedure ( law n. 13.105/2015).