A técnica de julgamento do artigo 942 do CPC aplicada em embargos de declaração com efeitos modificativos

Abstract

Bearing in mind the search for the simplification of appeal systems, proposed by the Committee of Jurists that prepared the Draft of the New Code of Civil Procedure, this paper makes initial considerations on the extinction of the infringing embargo appeal and its replacement by the institute of judgment technique or expansion of collegiality, affirmed in article 942 of CPC/15. After examining this new legal provision and identifying its main and most contemporary controversies, a methodological approach is indicated to specifically analyze the problem of the application (or not) of the judgment technique in the event of non-unanimous judgment of appeal motions for clarification with modifying effects, when opposed in the face of an appeal previously decided unanimously. This paper shows the inconstancy of understandings on this issue, supported by the identification of four different streams of doctrine and jurisprudence, which are supported separately. Among these streams, two main ones stand out, leading us to valuable debates, especially within the Superior Court of Justice, on the integrative effect of motions for clarification and the valuation of votes won in non-unanimous judgments. The method adopted is the hypothetical-deductive one, through bibliographical and jurisprudential research, to conceptualize and to analyze the new rule of procedural law, as well as to identify its main controversies, and to alert to the need to establish a stable, complete, and coherent jurisprudence about the problem that is the topic of this study.