Modificações de precedentes e a irretroatividade do direito: o prospective overruling à luz do modelo constitucional de processo e do art. 927, §3º, do Código de Processo Civil de 2015

Abstract

Non-retroactivity is the most important aspect of legal certainty. It reveals a universal principle that protects not only the past, but also the present and the future; which ensures that the rights acquired and the obligations contracted are not erased. It is an imperative of reason that prevents the consequences of various legal facts from being unduly altered, human will from being distorted, that freedom to act in one way or another – or not to act – from being curtailed and that social chaos and ruin take place. However, the principle of non-retroactivity is not completely fulfilled when it acts on legislation, once the Law is not restricted to it. In Brazil, the precedents issued by the higher courts are also sources of Law, which oblige and guide. Thus, non-retroactivity must also reach the effects of new precedents that modify previous judicial rules – enunciated through theses by these higher courts –, precisely because, from a practical point of view, the retroactivity of new judge-made law would have the same harmful consequences than the retroactivity of legislation. Legally, the retroaction of new precedents is as dangerous as that of a new legislation, since both imply normative innovation, that is, change in the Law. For this reason, the temporal modulation of the effects of precedents must rule the Brazilian procedural legal system, since it is precisely this decision-making technique that will guarantee the non-retroactivity of Law. The brazilian Civil Procedure Code of 2015 - CPC / 2015 represents the pinnacle of the slow process of normative ascension of precedents and – due to the importance it gave to them within the procedural system – embodied, in its article 927, §3º, a technique of temporal modulation of the effects of ‘changes in case law’ made by the higher courts. The study of this decision-making technique – known in common law systems as prospective overruling – is the goal of this research.