Dever de fundamentação das decisões judiciais e a teoria dos precedentes: reflexos do art. 489, § 1º, VI do CPC/15 e sua indeterminação conceitual

Abstract

This dissertation analyzes the duty to state reasons for judicial decisions within the Brazilian legal system, from the perspective of Article 489, § 1, item VI, of the 2015 Code of Civil Procedure, and its correlation with the theory of precedents. The general objective is to delimit the normative scope of said provision, investigating whether the requirement to demonstrate distinguishing or overruling in order to depart from a previous judgment applies indistinctly to any decisional standard invoked by the party or if it is restricted to those endowed with binding effect. To this end, the dialectical approach method is adopted, with historical-comparative procedure and bibliographic and documentary research techniques. The study addresses the conceptual indeterminacy of the terms “súmula”, “jurisprudence”, and “precedente”, exploring the divergence between doctrinal currents that support the exhaustive nature of the list in Article 927 of the CPC and those that defend its exemplificative nature. The results demonstrate the existence of a dual control regime of justification, since, while the non-observance of binding standards - a category comprising the list of Article 927, local súmulas, and appeals with general repercussion - attracts the specific nullity of item VI, the disregard for persuasive precedent must be scrutinized under the general duty of argumentative engagement provided for in item IV. It is concluded that the efficacy of this model depends on a profound alteration in judicial culture, capable of overcoming the practice of "ementismo" (citation of headnotes) and understanding justification as the space where the authority of the precedent is legitimized by argumentative rationality, and not merely by hierarchical imposition.