Rescission actions from the perspective of iudicium rescindens and iudicium rescissorium

Abstract

This article examines the scope of jurisdiction and cognition in rescissory actions with an emphasis on the functional distinction between the rescinding court (iudicium rescindens) and the rescissory court (iudicium rescissorium). The main objective is to demonstrate that although sequentially related, these judgments are not interdependent, varying in their incidence according to the legal basis in article 966 of the Code of Civil Procedure (CPC), implying jurisdiction to judge the merits. The study adopts a deductive method with a theoretical dogmatic approach, using legislative analysis and a historical-evolutionary examination of rescissory action. Sources include doctrine and specialized academic articles, procedural legislation, and judgments of the Superior Court of Justice (STJ). Results point to peculiar characteristics of the three phases of rescissory proceedings demonstrating that the judgment of admissibility of rescissory proceedings is sui generis; that the iudicium rescindens is deconstructive in nature and by itself exhaust the purpose of the action; that the iudicium rescissorium only occurs when the defect allows for a new trial, observing the objective and subjective limits of the case; the cases in which the retrial must be carried out by a body other than the one that rescinded the decision. It can thus be concluded that rescissory is not a simple action under common procedure or a substitute for appeal but an exceptional and autonomous instrument for protecting the legality of decisions and res judicata, the exercise of which requires compliance with normative guidelines and correspondence between the recognized defect and the appropriate judicial measure.