Abstract
This article aims to analyze the thesis that the application of the doctrine of precedent, originated in England, could reduce judicial litigation in Brazil, mainly in tax law procedures, such as tax enforcement. Brazil Law applies Civil Law, which means that the law is based on the principle of legality. However, the Brazilian Judiciary System is costly and has lower effectiveness. To deal with these problems, the National Congress has changed the law, providing mechanisms from the Common Law, mainly by introducing the binding precedents system. Respect for precedent is a requirement of the Brazilian Civil Procedure Code of 2015. However, the theory of precedent was developed in a society culturally very different from the Brazilian, which leads to the need for comparisons such as the exposed here that will justify the differences facing the source procedure that will undoubtedly occur. However, there are doubts if the transformation of the legal system will reduce the impressive figures of judicial cases. Nevertheless, the conclusion is definite. The precedent theory involves techniques that can potentially reduce tax lawsuits, representing a significant number of all legal disputes in Brazil. This conclusion was reached through data analysis, some doctrinal sources, and, mainly, by the author’s reflections. This mix of scientific method verifies the hypothesis: describes and analyses the system and presents a definite conclusion.
Highlights
Brazilian Law uses a Civil Law system, on which statutes and codes approved by the Parliament are the essential legal grounds
Even though Brazil applies Civil Law and its codes, some recent new legislation and the way as judges are judging, which shows that the statutes may not be the only source of Law as it was in the past
Paragraph 1: The judges and the courts shall observe the provisions of art. 10 and in art. 489, § 1, when they decide on the basis of this article
Summary
Brazilian Law uses a Civil Law (or European Continental Law) system, on which statutes and codes approved by the Parliament are the essential legal grounds. The principle of legality emanates in article 5th, and incises II from the Federal Constitution: “no one shall be obliged to do or refrain from doing something except by virtue of law”. The most crucial source of the Law in the Common Law system is the judicial precedent; so much that judge-made Law is a synonym to Common Law. Even though Brazil applies Civil Law and its codes, some recent new legislation and the way as judges are judging, which shows that the statutes may not be the only source of Law as it was in the past. In 2004 a Constitutional Reform Act introduced binding súmulas (dockets of jurisprudence; extracts that summarize decisions from a Court, showing a stare decisis) from the Supreme Court, while the Civil Procedure Code (CPC) from 2015 contains, generally speaking, binding judicial precedents. There will be a long-term adjustment until the Brazilian Legal system can reach a secure and foreseeable law
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