RATIO DECIDENDI

DEVER DE INTEGRIDADE E COERÊNCIA NA UTILIZAÇÃO DE PRECEDENTES NA FUNDAMENTAÇÃO DAS DECISÕES JUDICIAIS E A FUNDAMENTALIDADE DO CASO CONCRETO DO PRECEDENTE

Abstract

The work focuses on the correct use of previous judgments (precedents) as a basis for deciding subsequent cases. The correct way to base decisions that are constructed using precedent judgments as the basis for deciding is analyzed, as well as the duty to observe the concrete case and the grounds for deciding (ratio decidendi) of the precedent and its factual relationship with the concrete case under consideration. judgment. It is demonstrated that substantiating judicial decisions is a constitutional duty, with infra-constitutional rules that value the stability, coherence and integrity of jurisprudence, in order to achieve the stability of the legal system and the social relations arising from them. To this end, at the time of the judicial decision, the precedent judged used as a basis for deciding cannot be abstracted from the concrete case previously judged, to enable similar cases to have similar decisions and, also, to enable the non-application of the precedent if the concrete cases are different from each other, through the use of the distinguishing technique. With this being done correctly, the desired stability of the legal system can be sought, which will have coherent decisions, with an intact legal system, which is in line with what is protected by the principles of equality and legal security.