Oralidade, duplo grau de jurisdição e o reexame em segundo grau das questões de fato
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Data
2015-08-25
Autores
Menezes, Pedro Henrique da Silva
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Universidade Federal do Espírito Santo
Resumo
This dissertation examines the relationship between orality and the double degree of jurisdiction in Brazilian Civil Procedure, focusing on the possibility of reviewing factual issues by the second-instance court. The analysis begins with the investigation of the principle of orality, its origins, foundations, and consolidation as a structural element of modern procedural systems. Then, it analyzes the double degree of jurisdiction from historical, comparative, and national perspectives, seeking to understand how, by virtue of the devolutive effect of appeals, the judicial system transfers full knowledge of the case from one level to another without discrediting the cognitive activity performed by the trial judge. The study adopts the legal-dogmatic method, with historical and comparative approaches, to discuss the normative nature of orality and the double degree of jurisdiction—whether they are rules or principles—and how such classification affects the possibility of restricting or suppressing these institutes by legislative action. The analysis covers the Brazilian Codes of Civil Procedure of 1939, 1973, and 2015, demonstrating that the apparent conflict between orality and the double degree of jurisdiction is resolved by understanding their complementary functions: orality, as a means of bringing the judge closer to the evidence; and the double degree, as a mechanism of control and improvement of judicial decisions. It concludes that the harmony between both principles is consistent with the contemporary Brazilian procedural model, in which the right to evidence and the right to appellate review coexist as fundamental guarantees of a fair and effective process.
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Questões de fato , Reexame , Prova oral