Fracionamento de demandas: a busca pela litigância responsável a partir da conexão direito material e processual

Abstract

This work investigates criteria to identify the severance of a lawsuit before the Courts, from the connection of institutes of Substantive Law and Procedural Law, in the search for a greater effectiveness of jurisdictional remedies. The objective is, based on concepts of substantial law that apply to the entire legal system, to establish objective ways of verifying whether a demand has been brought to the court in a severed manner. At first, the concepts of legal relationship and subject matter of the actionare analyzed, which apply to all branches of legal knowledge; the existing positions in Italy and Spain on the subject of severing are examined, as well as the existing criticisms of these understandings. In chapter 3, several possible criteria for the identification of the severance of anaction are listed and addressed, with critical analysis and problematization of each of them. The examination is always taken into account the necessary relationship between Substantive and Procedural Law, as well as the instrumentality of the latter. In the final chapter, the possibility of consideration of severance as an act of abuse of procedural right is examined. The research methodology is of a legal-theoretical aspect, of a comprehensive-propositional type, with a predominance of deductive reasoning. A literature review and research of national and foreign precedents were carried out. In the end, it was concluded that more than one criterion can be adopted to identify severance and that all of them have advantages and disadvantages, and the option for one or the other is a matter of legislative option, which must take into account the legal system as a whole and provide that the process serves as an instrument of substantive law to be protected.