Sistematização dos parâmetros de caracterização da litigância de má-fé a partir de estudo empírico no STF e STJ

Abstract

Although it is essential for the good faith and cooperation principles to become concrete in the Brazilian civil litigation, the legislation regarding the bad faith litigation lacks clear and solid standards to allow proper sanctioning. Besides the practical feeling of its inefficiency and impunity, authors appear to have mix criteria when discussing the subject and its elements. There is a lot of disagreeing about the concept of bad faith litigation, as well as its purpose, (a)typicality, parties affected by the illicit behavior, the need to prove the damages suffered and the party’s intention to violate the good faith and even the extension of the applicable sanctions. Also, the inadequate nomenclature and use of restrictive or imprecise expressions can be frequently noticed. It is possible to comprehend the purpose of the law by examining the history surrounding bad faith litigation, however, even the legislation mixes the term’s main characteristics. In addition, the courts seem to face the same obstacles. Empirical research in the form of jurisprudence study between the years of 2015 and 2020, has shown that verdicts from both STF and STJ regarding bad faith litigation contained personal and subjective terms, lacking proper motivation. Besides, courts tend to apply bad faith litigation sanctions as a form to protect their own interests, mainly in exceptional cases. Due to lack of legal, doctrinal and jurisprudence parameters, it was necessary to do research regarding the origins of good faith and abuse of law, both of which nowadays are applied under the objective standard. Consequently, the goal was to find an objective standard to identify bad faith litigation, allowing a new method to depict it. However, the general rules concerning good faith and abuse of law only served as direction, without showing concrete criteria that can avoid subjectivism and put forth adequately motivated rulings on regarding bad faith litigation. Therefore, elements from other legal institutes related to good faith and abuse of law that could stablish a standard to identify bad faith litigation were investigated. Institutes such as ‘ato atentatório à dignidade da Justiça’ and ‘assédio processual’ in Brazil, ‘litigância de má-fé’, ‘abuso de direito de ação’, ‘culpa in agendo’ and ‘taxa sancionatória’ in Portugal, contempt of court, sham litigation, frivolous litigation, vexatious litigation, splitting of causes of action, document dump, flood or bury in documents, strategic lawsuit against public participation (SLAPP) and chilling effect, as well as legislation from other countries and the concept of guerilla tactics in arbitration, were analyzed. Finally, it was found that lack of motivation and low probability of a favorable ruling are used to apply most of those legal institutes. By combining such standards within abuse of law, it was possible to find resemblance with the purpose of the ‘embargos de declaração’ remedy – which consists in amending arguments used by the judge. Therefore, conclusion shows that the concepts of ‘omissão’, ‘obscuridade’ e ‘contradição’ can be used to verify lack of motivation, which, when stipulated by law, result in bad faith litigation.