東華大學圖書館 |

Objective limits of res judicata = a fundamental right established between security and freedom /

Record Type:	Electronic resources : Monograph/item
Title/Author:	Objective limits of res judicata/ by Gustavo Martins Baini.
Reminder of title:	a fundamental right established between security and freedom /
Author:	Baini, Gustavo Martins.
Published:	Cham :Springer Nature Switzerland : : 2025.,
Description:	xv, 87 p. :ill., digital ;24 cm.
[NT 15003449]:	1. Introduction -- 2. The Anglo-Saxon solution: collateral estoppel and the judgement on the matter -- 3. The Roman-Germanic problems: in search of the fundamental legal conformation of the right to res judicata -- 4. The Constitutional Limits of Extending Res Judicata to Preliminary Issues -- 5. Conclusion.
Contained By:	Springer Nature eBook
Subject:	Res judicata. -
Online resource:	https://doi.org/10.1007/978-3-032-07485-0
ISBN:	9783032074850

Objective limits of res judicata = a fundamental right established between security and freedom /
Baini, Gustavo Martins.

Objective limits of res judicataa fundamental right established between security and freedom /[electronic resource] :by Gustavo Martins Baini. - Cham :Springer Nature Switzerland :2025. - xv, 87 p. :ill., digital ;24 cm. - SpringerBriefs in law,2192-8568. - SpringerBriefs in law..

1. Introduction -- 2. The Anglo-Saxon solution: collateral estoppel and the judgement on the matter -- 3. The Roman-Germanic problems: in search of the fundamental legal conformation of the right to res judicata -- 4. The Constitutional Limits of Extending Res Judicata to Preliminary Issues -- 5. Conclusion.

This book critically addresses one of the most complex issues in procedural law: the objective limits of res judicata. Particularly relevant in civil law countries such as Italy and Germany-and especially in Portugal-this topic has generated intense doctrinal debate. In an effort to circumvent the constraints imposed by the traditional model of the plea of res judicata and the triple identity test, Portuguese legal scholarship developed the concept of the authority of res judicata. However, the vague contours of this concept have led to doctrinal uncertainty and inconsistency. Does res judicata extend only to the operative part of the judgment, or does it also encompass its reasoning? Is only the claim precluded, or also the cause of action? Which issues that arise during litigation are barred from future disputes? The more freedom allowed to relitigate such issues, the less legal certainty the decision provides. Conversely, the more stabilizing the decision, the narrower the scope for future litigation. This work proposes an alternative to the perplexing approaches that have challenged jurists within the Romano-Germanic tradition-particularly in Portugal: res judicata should also extend to prejudicial questions, provided they were effectively litigated by the parties, with full procedural guarantees, and expressly decided. This proposal reflects an adaptation of the Anglo-American model of collateral estoppel, already partially adopted by Brazilian legislation, with a powerful pacifying effect. The monograph is divided into three parts. The first examines the Anglo-American model of stabilizing judicial decisions, from the pre-Roman influence on res judicata to the Restatement (Second) of Judgments, including the requirements of nonmutual collateral estoppel, partially incorporated into Brazilian law. The second part explores the core concepts of the controversy-main and prejudicial issues, preclusion, res judicata, authority and plea of res judicata-and presents the tension between legal certainty and freedom at the heart of the fundamental right to res judicata, drawing on a profound insight by Zygmunt Bauman. Ultimately, this book argues that its proposed framework offers a constitutionally sound interpretation of the fundamental right to res judicata, striking a careful balance between the prohibition of excessive restriction and the need to avoid insufficient legal protection. The third and final part turns to the procedural topology of res judicata-exploring where, within the complaint, defense, and judgment, the preclusive effect truly resides: whether in the claims, the causes of action, the operative part, or the reasoning. It also revisits the historic debate between Savigny and Chiovenda, suggesting that their positions may be more compatible than traditionally assumed. The analysis concludes that the subject matter of the dispute encompasses not only the principal issue but also the prejudicial questions that were effectively litigated, offering a critical perspective on the Italian legislative model, later adopted in Portugal and formerly in Brazil's Code of Civil Procedure.

ISBN: 9783032074850

Standard No.: 10.1007/978-3-032-07485-0doiSubjects--Topical Terms:

3803014
Res judicata.

LC Class. No.: K2302

Dewey Class. No.: 347.077

Objective limits of res judicata = a fundamental right established between security and freedom /
LDR:04515nmm a2200337 a 4500 001 2421738
003 DE-He213
005 20251025130421.0
006 m d
007 cr nn 008maaau
008 260505s2025 sz s 0 eng d
020 $a 9783032074850 $q (electronic bk.)
020 $a 9783032074843 $q (paper)
024 7 $a 10.1007/978-3-032-07485-0 $2 doi
035 $a 978-3-032-07485-0
040 $a GP $c GP
041 0 $a eng
050 4 $a K2302
072 7 $a LNAC $2 bicssc
072 7 $a LAW012000 $2 bisacsh
072 7 $a LNAC $2 thema
082 0 4 $a 347.077 $2 23
090 $a K2302 $b .B162 2025
100 1 $a Baini, Gustavo Martins. $3 3803013
245 1 0 $a Objective limits of res judicata $h [electronic resource] : $b a fundamental right established between security and freedom / $c by Gustavo Martins Baini.
260 $a Cham : $b Springer Nature Switzerland : $b Imprint: Springer, $c 2025.
300 $a xv, 87 p. : $b ill., digital ; $c 24 cm.
490 1 $a SpringerBriefs in law, $x 2192-8568
505 0 $a 1. Introduction -- 2. The Anglo-Saxon solution: collateral estoppel and the judgement on the matter -- 3. The Roman-Germanic problems: in search of the fundamental legal conformation of the right to res judicata -- 4. The Constitutional Limits of Extending Res Judicata to Preliminary Issues -- 5. Conclusion.
520 $a This book critically addresses one of the most complex issues in procedural law: the objective limits of res judicata. Particularly relevant in civil law countries such as Italy and Germany-and especially in Portugal-this topic has generated intense doctrinal debate. In an effort to circumvent the constraints imposed by the traditional model of the plea of res judicata and the triple identity test, Portuguese legal scholarship developed the concept of the authority of res judicata. However, the vague contours of this concept have led to doctrinal uncertainty and inconsistency. Does res judicata extend only to the operative part of the judgment, or does it also encompass its reasoning? Is only the claim precluded, or also the cause of action? Which issues that arise during litigation are barred from future disputes? The more freedom allowed to relitigate such issues, the less legal certainty the decision provides. Conversely, the more stabilizing the decision, the narrower the scope for future litigation. This work proposes an alternative to the perplexing approaches that have challenged jurists within the Romano-Germanic tradition-particularly in Portugal: res judicata should also extend to prejudicial questions, provided they were effectively litigated by the parties, with full procedural guarantees, and expressly decided. This proposal reflects an adaptation of the Anglo-American model of collateral estoppel, already partially adopted by Brazilian legislation, with a powerful pacifying effect. The monograph is divided into three parts. The first examines the Anglo-American model of stabilizing judicial decisions, from the pre-Roman influence on res judicata to the Restatement (Second) of Judgments, including the requirements of nonmutual collateral estoppel, partially incorporated into Brazilian law. The second part explores the core concepts of the controversy-main and prejudicial issues, preclusion, res judicata, authority and plea of res judicata-and presents the tension between legal certainty and freedom at the heart of the fundamental right to res judicata, drawing on a profound insight by Zygmunt Bauman. Ultimately, this book argues that its proposed framework offers a constitutionally sound interpretation of the fundamental right to res judicata, striking a careful balance between the prohibition of excessive restriction and the need to avoid insufficient legal protection. The third and final part turns to the procedural topology of res judicata-exploring where, within the complaint, defense, and judgment, the preclusive effect truly resides: whether in the claims, the causes of action, the operative part, or the reasoning. It also revisits the historic debate between Savigny and Chiovenda, suggesting that their positions may be more compatible than traditionally assumed. The analysis concludes that the subject matter of the dispute encompasses not only the principal issue but also the prejudicial questions that were effectively litigated, offering a critical perspective on the Italian legislative model, later adopted in Portugal and formerly in Brazil's Code of Civil Procedure.
650 0 $a Res judicata. $3 3803014
650 1 4 $a Civil Procedure Law. $3 899287
650 2 4 $a Civil Law. $3 897212
650 2 4 $a Private International Law, International and Foreign Law, Comparative Law. $3 3538685
710 2 $a SpringerLink (Online service) $3 836513
773 0 $t Springer Nature eBook
830 0 $a SpringerBriefs in law. $3 1568589
856 4 0 $u https://doi.org/10.1007/978-3-032-07485-0
950 $a Law and Criminology (SpringerNature-41177)