Direito de autoexclusão no julgamento de casos repetitivos: harmonizando gestão e acesso à justiça

Abstract

Based on the methodological perspective of access to justice, the research analyzes how the unique strategic capacity of habitual litigants enhances the manipulation of the system for resolving repetitive cases. Describing the general reasons for the congestion of Brazilian Justice, it was verified that institutional attempts to solve the problem are based on partial diagnoses, affirmations of a supposed abuse of demands from the Brazilian population. Hence, they end up rewarding turpitude, by creating mass process management techniques in which the best performers are those who, in origin, generate the congestion: the big litigants, who do not comply with citizenship rights. After verifying that contemporary constitutionalism, although permeated by the centrality of collective and diffuse rights, continues to prioritize the protection of individual rights, it proposes that the system for resolving repetitive cases opens up to the right to self-exclusion (right to opt out), present in other sources of comparative law. To this end, the precepts relating to the automatic suspension of processes, by the simple establishment of IRDR, repetitive appeals or by the recognition of general repercussions in extraordinary appeals, must be declared partially null and void without reducing the text, making them inapplicable against the authors of processes individuals who choose to pursue their demands. The recognition of this right tends not to ruin the managerial concerns of the Judiciary, given that the proportion of individuals who exercise it around the world is small. However, the simple possibility of it being exercised would constitute a factor in rebalancing the procedural relationship, controlling the arrogance of major litigants.