Análise da incidência do princípio da fungibilidade nos recursos previstos no Código de Processo Civil (Lei no 13.105, de 16 de março de 2015)

Abstract

The job presented here has the objective to analyze the incidence of fungibility in the appeal stipulated by the Code of Civil Procedure as a result of the entry into force of Law 13.105 of March 16. 2015. The principle of exchangeability is based on legal security of constitutional guarantees, procedural celerity, effectiveness and instrumentality of forms or aspects. The fungibility in court place allows substitution of appeal in inaccurate way to another accordingly in order to avoid its inadmissibility. The Civil Procedure Code of 1973 did not expressly foresee a possibility of applying the principle of fungibility in appeals, so that doctrine and jurisprudence were of the sense that in its event that would be doubts related to the nature of the decision, non-existence of gross error in the choice of appeal, as well as an interposition made at an appropriate procedural time. Otherwise, the Civil Procedure Code of 2015 innovated by providing three hypotheses of exchangeability principle application which ones are: substitution of embargoes of declaration requesting clarifying decision in internal appeal (article 1.024, paragraph 3°, CPC); amendment of Special Appeal in extraordinary appeal (article 1.032, CPC); modification of extraordinary appeal in special appeal (article 1.033, CPC). In addition to a current and express normative, it extends to a possibility of implicit application of fungibility principle is considered, if the requirement of lack of gross mistake and a doubt existing regarding to the nature of the decision are taken in account. Therefore, a Law 13.105 of March 16, 2015, regarding to fungibility in appeals, constitutes an excellent normative innovation that will assist court activity decision-making improvement, as well as ensure the agility and effectiveness of the legal proceeding