A possibilidade de revisão criminal com base na formação de precedente mais benéfico

Abstract

The present monograph has as its main objective the analyze of the possibility of propose a criminal review action, based on the formation of a precedent more favorable to the sentenced. In this sense, considering the speed of contemporary social changes, and the difficulty of the law to follow them, it was hypothesized that criminal procedural legislation is outdated and should be harmonized with the current legal order and the New Code of Civil Procedure 2015, which inaugurates a strong system of judicial precedents. Therefore, the following research seek to demonstrate that a new interpretation should enable the proposition of criminal review, specifically to extend the limited concept of “criminal law” provided in Article 621, item I, of the Criminal Procedure Code to term “legal rule”, in view of the true essence behind this assumption of the revisionist institute. Thereby, for the development of this research, the hypothetical-deductive method will be used, adopting the type of prospective legal investigation. To this end, exploratory research will be carried out through bibliographic research. In the context of this research, the first chapter takes care to demonstrate the new system of judicial precedents brought by the New Code of Civil Procedure, its effects and application in the Criminal Procedure. Then, the second chapter deals with the criminal review action, all its peculiarities, and especially, its current scope, already signaling that this space is no longer compatible with social concerns and the current legal system. Finally, the last chapter raises the hypothesis that the rule extracted from the precedents, that is, the ratio decidendi, as it is also a legal rule, being more beneficial to the accused, should be used in his favor in criminal review, bringing the debate of how doctrine and jurisprudence are reacting to this possibility.