Autocomposição em processos envolvendo a fazenda pública: a necessária compatibilização entre o regime processual e o regime jurídico-administrativo

Abstract

There is no point in a country that has laws in its legal order in a reasonable amount if there are no mechanisms that guarantee its application and effectiveness. The Judiciary should not be seen as the natural way of solving demands, rather, other methods of resolution and conflict, self-composition and heterocompositions, such as mediation, conciliation and arbitration, are considered as a healthy tendency for greater efficiency of distribution of justice. The main purpose of this study is to present a legal analysis on the possibility of self-composition in cases involving the Public Treasury, and its necessary compatibility between the procedural regime and the legal administrative regime, removing any doubts about the possibility of the Public Treasury using methods consensual agreements for the solution of conflicts to which it is part, since not every right defended by the Public Administration is unavailable, and even if it is, it is accepted that related solutions are compromised. The first chapter presents access to justice through a Multiport Court. This topic includes access to the Judiciary in return for access to a just legal order and forms of heterocomposition and self composition that demonstrate that the sentence is only one of the appropriate methods contemplated by our order to resolve conflicts. In the second chapter, the issue of self composition and the slowness of justice is developed, and the problem of this delays as a result of the litigiousness of the procedural parties, as well as the influence of the contradictory in restraining this litigiousness. Still on this topic is the confrontation of the peculiar situation of the Public Treasury, the influence of the precedents in the contention of the litigiousness and the self-composition as antidote to the slowness of justice. Cooperation and good faith, principles enshrined in the new procedural law versus autonomy of the will, are also part of the debate. In the third chapter, the self composition involving the Public Treasury is analyzed on the autonomy of the will approach in contradistinction to the principles of administrative law of the supremacy of the public interest over the private, legality and unavailability of the public interest that is not affected when the Administration Recognizes and enforces the rights of others. In this chapter, we present the deliberation of self-determination as a legal decision and the limiting factors for the composition of the litigation and transaction by the Public Treasury. In the fourth and last chapter there is the confrontation of the necessary compatibility between the procedural regime and the legal-administrative regime. It demystifies the idea that the Public Treasury enters into agreements based on the autonomy of the will, ending with the compulsory attendance at the Conciliation Hearing provided for in art. 334 of CPC / 2015, demonstrating in this subitem the peculiar situation of the Public Treasury.