Relativization of the material “res judicata” in the brazilian civil suit
DOI:
https://doi.org/10.5433/2178-8189.2006v10n0p203Keywords:
Res judicata, principle of proportionality, relativization.Abstract
It also addresses the debate about the revitalization of the res judicata in the civil suit of the individual cognitive tutelage when the sentence goes against constitutional norms or principles. It highlights that only the existent sentences, which lead to res judicata unconstitutional or unjust, may be relativized. It sees the principle of proportionality as a method or criterion adequate to solve the conflict of values that arises when the law enforcer is faced with an unfair or unconstitutional sentence. Only the consideration upon values, in a true case, is able to determine whether the res judicata must be kept or not in the juridical order. To relativize the res judicata unconstitutional a de-constitutive action is proposed, with the same characteristics of a rescinding action, but not subject to terms of duration.
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