Critical analysis considering the judiciary application of res judicata | 2017

Author(s) Germana Sanhudo Barreira
Advisor(s) Maria Elizabeth Moreira Fernandez
Year 2017

Synopsis The res judicata is far from being an innovation and, in this particular case, the present dissertation does not represent any breakthrough. In fact, in our civil procedural law the res judicata is set forth in the article 580º and delimited as an exception in the article 577º, necessary and closely linked to the value of the sentence. It is therefore easy to foresee that res judicata may come across with a double prism: either as authority or as exception. However, the limits of the sentence, which are closely related to legal certainty are not always easy to shape. It is either because the subjects who were parties in the judicial demand are not the only ones bound by the sentence, either because the res judicata is fixed not only by the operative part of the sentence, but also by its grounds. And the filling of the res judicata dilatory exception depends on these premises as well. Therefore, who can propose a new action? With which object? This verification process is made according to the criterion of a triple identity, which is specifically regulated in the article 581º of the Code of Civil Procedure, and which is born from equality of parties, request and cause of action between actions. But will it be enough? What is the place that the possibility of contradiction that the Portuguese courts can face occupies in this broth? In addition to the subjective and objective limits of res judicata, we will speak about time limits, a category that does not seem to have great acceptance in our legal system. Moreover, are judicial decisions absolutely immutable, or, on the contrary, can they be affected by extraordinary appeals? We intend to dissect or deconstruct the concept of res judicata in the light of the law, but also in the eyes of the justice, in the attempt to compact in this dissertation the relevant information about the theme, as much as possible.

See more here.