Analysis of the theory of mitigated taxation of the instrument appeal

Abstract

This article aims to discuss the thesis established by the Superior Court of Justice in the judgment of REsp 1704520/ MT, in which the possibility of mitigating the list of interposition of the Interlocutory Appeal present in art. 1015 of the NCPC, which was initially given a definitive character by the legislator. The general concept of the resource in question is presented, as well as its development in the history of Brazilian civil proceedings – being the means of challenging interlocutory decisions in the knowledge phase. It should be noted that the Appeal's role was defined as exhaustive, that is, it can only be appealed in the strict cases provided for by law, as it sought to give more autonomy and concreteness to the first instance decision, avoiding that there would be a congestion of the courts in the judgment of issues parallel to the merits. There is no preclusion of the right to appeal that decision, with the timely moment being the preliminary appeal. In this sense, the STJ – Superior Court of Justice, through a systematic interpretation adopted the theory of mitigating the taxation of the list of the Interlocutory Appeal, enabling the filing of the appeal when there is urgency in the issue discussed, in such a way that, if discussed in the context of a preliminary appeal, the object of this appeal would have already been lost. The understanding, at the same time as it resolved the doctrinal problem – as the issue of a writ of mandamus was discussed in situations such as the one described – divided the doctrine with regard to respect for the will of the original legislator.