THE DISTINGUISHING

THE PROPPER JURISDICIONAL PROVISION AS A RIGHT UNDER FEDERAL CONSTITUTION`S SIGHT

Abstract

The interest of the research, focused on Legal Hermeneutics and also on the adequate jurisdictional provision, aims to trace elements of the judicial precedent, as a whole, and of distinguishing, as a specific object, in the system of mandatory precedents, adopted by the Brazilian Civil Procedure Code. Therefore, the argument of distinction imposes the search for elements of its legal nature, its limits and also how such a system of precedents reinforced the importance of the interpretative and argumentative activity of the one who intends to exclude the application of a precedent. Using a deductive method of argumentation, the research seeks to achieve how the distinguishing argument, in the face of a precedent, would be a cooperation tool for procedural speed, legal certainty, jurisdictional cohesion and, also, cooperation, democratization of interpretation and also the defense of due process of law. The changes brought by the technique of precedent, through the construction of a binding system of reasoning, also brought high importance to the legal arguments for distinguishing. This judgment technique with linked reasoning, moreover, encouraged research on procedural principles and how they would continue to be respected in the procedural cooperation model currently adopted. The distinguishing, though, earns a constitutional guarantee covering, as this faces a due process` violation.