A sentença, os recursos de apelação e agravo de instrumento frente à fungibilidade recursal: interpretação ao artigo 162, § 1º do Código de Processo Civil

Abstract

Most of the Law Doctrine has regarded the promulgation of the Law - The Code of Civil Procedure, 1973 – as significant advancement in the appeal procedures in comparison with the old Code, 1939. Not only in relation to the new types of judicial appeals that have appeared since then, but also as an attempt to improve the systematization of judicial appeal that would best suit the specific practical procedural situation, therefore, in its core, as it is shown in the articles 513 and 522, caput, it means the kinds of judicial appeals of the appellation and the interlocutory appeal in relation to the sentences and interlocutory decisions. In this case, it´s important to emphasize that the modification made through the Law 11.232, of December 22nd, 2005 has brought new wording to the article 162, paragraph 1st, thus confirming the already distinguished doctrine and jurisprudence understanding, meaning that there is the possibility of applying the fungibility between appeals without having it regarded any longer as poor method or even gross error. It demonstrates the idea of absolute distinction between the possibilities of appeals in relation to the decision that is presented, notwithstanding the fact that the theme is still cause for divergences, is in need of trimming and will still be appeased with the application of the jurisprudence and doctrine understandings. This paper aims to demonstrate the effects of such alterations in what has been argued until now