O prequestionamento: atual tratamento pelos tribunais superiores como reflexo de uma jurisprudência defensiva e novas perspectivas com base no projeto do novo CPC

Abstract

The pre-inquiry is one of the most controversial issues in the Brazilian legal system. The dissent reigns in the doctrine and jurisprudence based on various aspects, such as definition, (um) constitutionality, legal nature, species and ways of fulfillment. The lack of uniformity in its treatment makes it a facilitating mechanism for the inadmissibility of exceptional appeals, meaning thereby an effective instrument to the practices of defensive jurisprudence in the Superior Courts. That leads to disruption of the constitutional powers of the Supreme Court and the Superior Court of Justice, which, by not proceeding with the analysis of the case (beyond admissibility) in exceptional appeals, fail to safeguard the Constitution and the federal law, respectively, and to ensure the uniformity of the application and interpretation of the law. In view of that, the Project of the new Code of Civil Procedure tries to solve some of the discussions and thus clarify, although partially, the gray area hanging over the pre –inquiry.