Processo Judicial, Tributação e Concorrência: A Coisa Julgada e sua Rescisão no Novo CPC

Abstract

The emphasis on binding legal precedents imposes the creation of efficient ways to review decisions that are res iudicata before the pacification of the jurisprudence by the Superior Courts. Being elapsed the term of two years for the rescinding action, there are doubts about the revision of those contrary to the jurisprudence decisions on the terms of article 505, I of the new Code of Civil Procedure (BCCP). Alternatively, the New Code of Civil Procedure aimed to solve the problem, with a new term to fill the Rescissory Action, in the case of res iudicata were contrary to the understanding of the Supreme Court. This problem is very current on the taxation realm with the edition of the Normative Opinion n. 492/2011 of the General Attorneys Office for Fiscal Affairs, which foresees the automatic set aside of the res iudicata that were contrary to the understanding of the Supreme Court. The revision of this res iudicata maybe also important to the maintenance of the competition of a free market, as if only a company possesses a decision that exempts it of the payment of a specific tax, this company will have a great advantage in face of its competitors and this would create disequilibrium in the market.