Julgamento das causas repetitivas : uma tendência de coletivização da tutela processual civil

Abstract

The research deals with the numerous procedural techniques stipulated in the Brazilian judicial order, as well as in foreign law, for the collective treatment of repetitive questions affecting individual demands. It highlights the pros and cons of collective actions characterized by the out of the ordinary legitimation phenomenon. It presents also alternatives to collective lawsuits, among which the system of pilot causes and group actions, both in foreign and in domestic law, proposing at the same time a classification of them. After listing and describing these procedural techniques, it seeks to contextualize their emergence in the current scenario of the Brazilian legal system. Particular attention is placed on the right to contest as a factor in favor of the disputants’ participation in the construction of the court’s decision and on the right to parity of weapons in civil lawsuits. Critical notes to the text specifying such legal proceedings are made in light of those principles. The overall approach employed comprises not only the deductive method but also the dialectic one and, with regard to the procedures, it contemplates also the historical, the comparative, the statistical and the exploratory-descriptive methods. The study consists essentially in a theoretical reasoning, aided by a review of national and international literary sources, as well as by an empirical research into the judicial proceedings of civil appeals filled in the “Superior Tribunal de Justiça” (the Brazilian Superior Court of Appeals). This going over the judicial records has detected, by the examination of eight variables, some damage to the right of contest in the trial of repetitive issues, along with the non-observance of the parity of weapons between the litigants. Through a comparative analysis of different national judicial systems, the advantages of some foreign legal proceedings are identified vis-à-vis the Brazilian law, mainly with regard to the right of parity of weapons. It is asked then if there is any movement of reinterpretation of procedural safeguards in view of the new litigation model, while the true function of the “Superior Tribunal de Justiça” is rescued considering its role in preserving the unity of Law. The Brazilian way of applying these procedures is criticized, especially with respect to the rights of contest and of parity of weapons.