Responsabilidade civil processual do estado no processo civil: a despesa com honorários contratuais como dano injusto reparável pelo estado como autor sucumbente

Abstract

The objective is to deal with the State's participation in the Civil Procedure from a point of view of procedural civil responsibility, seeking to establish in which the measure is applicable the command of art. 37, §6 of the Federal Constitution for refund of contractual attorney fees. In order to do so, it rescues notions related to the civil responsibility of the State, adopting a vision based on the "Theory of Civil Responsibility", whose application extends to the civil process. In this context, study the civil responsibility in the post-industrial society, where it founded on primacy of the victim and presents an e indemnifying goal, reflecting the Principle of Solidarity. In addition, the importance of the Principle of Integral Reparation is addressed as a consequence of this interpretive standard (the viewpoint of the injured party), since it is an axiological guideline that determines the greatest compensatory amplitude in the perspectives an debeatur and quantum debeatur. It assumes a premise that it is an illegality irrelevant for the objective responsibility of the State, which makes viable civil procedural responsibility for the exercise of the right of action, in which case the damage is qualified as unfair, concept that was built according to the Brazilian law system. Specifically speaking to procedural damages, it was demonstrated that there has been an evolutionary course in Brazilian Law, starting from a conception restricted to the illicit action, to adopt an objective procedural civil responsibility typified in the responsibility for the enforcement of guardianship and provisional execution and for the costs of the process. In the civil procedural responsibility of the State, marked by specificities, it was verified that art. 27 of the LINDB, created by Law no. 13.655 / 2018, present a general indemnification clause for procedural damages to the State's, when act on judicial, administrative and correctional process. That represent a "conceptual turn" of the illegal act for the unfair damage that also portray a importation of the directive of the victim to the process, in case the winner for who suffered unfair and abnormal damage. In view of this, it is concluded that the jurisprudence of the STJ, which, although hesitant, was established in the sense of not indemnifying the winner in contractual attorney fees, should not be applied to the public sphere, where the Principle of Integral Reparation of the procedural damages to determine the expenses with contractual attorney fees as indemnifiable, under the terms of art. 37, § 6 of the Federal Constitution.