Conceito jurídico indeterminado: análise da utilização do critério do melhor interesse da criança no Recurso Extraordinário nº 888.815/RS

Abstract

This article aims to understand, from the notion of indeterminate legal concept of the normative-objective class elaborated by the German professor Karl Engisch, the so-called Best Interest of the Child as a guiding criterion for judicial decisions dealing with the rights and interests of children and adolescents. As a case study, the decision referring to Extraordinary Appeal 888.815/RS that dealt with the possibility of home education in Brazil was analyzed. As a method, there is a qualitative analysis, using documental, bibliographical, and case analysis research. From the analysis of the judgment, it was verified that despite the theme dealing with the rights of children and adolescents, therefore, it is imperative to observe the Best Interest of the Child, only two ministers explained the term in their grounds. Only one of them, in its interpretative exercise, conducted the evaluative filling according to the understanding of the normative-objective concept interpretive exercise proceeded the evaluative filling in accordance with the understanding of the normative-objective concept.