A relativização do instituto processual da coisa julgada nas ações de investigação de paternidade à luz da jurisprudência dos tribunais superiores

Abstract

Recently, there has been a focus on paternal absence and the lack of recognition of paternity, with occasional debates about the consequences of this "volatile paternity" being considered a social problem with harmful psychological and cultural effects. From this angle, it is noteworthy that the Courts play a fundamental role in maintaining the Rule of Law, exercising the basilar figure of the Judiciary Branch. In this sense, the scope of this study is to evaluate the possibility of the relativization of the procedural institute of Res Judicata in Paternity Claims that have already become final and unappealable in which the judgment was unfounded, based on the lack and/or insufficiency of evidence, in light of Brazilian jurisprudence. In order to achieve the objective, this multidisciplinary research is a theoretical study in which the extensive literature is crossed with judicial precedents. To this end, national legal publications and essays involving Family Law, Civil Procedural Law, and Constitutional Law were surveyed. Firstly, the concept of Res Judicata itself, its effects, and its species, were discussed. Then, the limits imposed to it by legislation and by recent decisions were analyzed, highlighting the admissibility of mitigating the Res Judicata. At the same time, the constitutional quality of the right to recognition of paternity and the right to filiation was evidenced, with the consequent detailing of the voluntary recognition of paternity, and the forced one, focusing on the Paternity Proceeding Claims. Furthermore, by proposing the withdrawal of the Res Judicata in Paternity Investigations, the principle of legal security was confronted with the principle of the human person dignity. Finally, it was demonstrated that the application of proportionality is compatible in the case of a collision of principles, as disseminated by Robert Alexy in his theory of balancing principles. Given the findings, and considering that law is fluid in relation to social changes, one can advance in understanding that when weighing and confronting the legal security stemming from the Res Judicata with the fundamental right to filiation, the latter should prevail, in order to achieve a fair resolution of the procedural dispute, materializing the standards established in the Federal Constitution. [resumo fornecido pelo autor]