Recurso especial (art. 105, III, a, CF) e ação rescisória (art. 485, V, CPC): confronto dos institutos

Abstract

The purpose of this study is to compare the special appeal filed based on opposition to, or non applicability of federal treatise or law (art. 105, III, a, CF/88) and the proposed motion for a new trial based on violation of the exact provision of law (art. 485, V, CPC). Firstly, we identified the types of means for challenging legal judgments contemplated in the Brazilian legal system, in order to place the special appeal and the motion for a new trial within the overview of the remedies for controlling judicial acts. We identified that the special appeal, as the name itself suggests, fits into the class of appeals, while the motion for a new trial represents an example of a typical stand-alone inadmissibility suit. Given the existing discussion regarding the limits imposed by the system on dealing with these remedies, we analyzed each concept separately, searching for the exact sense and reach of art. 105, subsection III, letter a, of the Federal Constitution and of art. 485, subsection V, of the Code of Civil Procedure. Subsequently, we proceeded to compare the special appeal and the motion for a new trial, at which opportunity their principal similarities and differences were identified. We saw that, although the term exact is to be found in art. 485, subsection V, of the Code of Civil Procedure, the same material discussed in a prior special appeal filed as the point of support for opposition to or non applicability of the federal law may be raised in the motion for a new trial based on violation of the exact provision of the law. Even so, the motion for a new trial cannot be necessarily considered a reiteration of the special appeal, given the greater vastness of art. 485, subsection V, of the Code of Civil Procedure. We also analyzed the admissibility of filing the special appeal against the judgment handed down in a motion for a new trial, investigating which subjects may be raised by the appellant. Lastly, we examined the possibility of filing a motion for a new trial against a recissory judgment handed down. By doing so we sought to limit the scope of admissibility of the special appeal and of the motion for a new trial in the aforementioned situations, so that there is effective control of judicial sentences, without indefinitely delaying the arrival at a final solution for the conflicts