Materials controversies about binding precedente n. 13 of the Federal Supreme Court

Abstract

The following study aims to highlight material controversial aspects that refer to the prevailing Binding Precedents No.13 statement of the Supreme Court. In this field of study, the analysis was initially focused on the cornerstone of the Binding Procedures implementation, turning itself to the historical context and the need for Judiciary reformulation that enabled the publication of Constitutional Amendment No.45, which introduced the Binding Precedents in the Brazilian Law system. Having established the baseline, the following step was to articulate the above mentioned statement which objective is to deal with nepotism in public administration, and by doing so, unveil its effectiveness. The above mentioned study concentrated in the controversial facts that limit its usage, such as, the concept of kinship that differ from the ones in Civil Rights; the understanding about “legal entity” definition, once there is no consensus as to what is the expression, neither when it refers to “crossed nepotism”; and the applicability to political tenure, which is the most controversy of all. Ultimately, by the means of the addressed theoretical fundaments, the conclusion is that even considering the importance of debating the subject, the item does not present the expected transparency, and as a consequence, does not represent or even consolidate the judicial understanding on the matter, especially since it demands the judge to discern or interpret, a fact that confronts the very reason of being a Binding statement.