A extensão dos efeitos da coisa julgada no processo coletivo: análise da extensão dos efeitos de procedência de sentença coletiva em ação individual improcedente não suspensa e transitada em julgado

Abstract

Article 104 of Law 8.078/90 Consumer Protection Code sets out that class actions, under its Article 81, do not produce lis alibi pendens for private actions and that the erga omnes or ultra partes res judicata effect, to which that Law refers, will not benefit the plaintiff of private actions unless private lawsuits are suspended within thirty days, counted as from when the class action was filed.This paper holds that judgment for plaintiff in the class action should also extend the effects of the collective matter adjudged, erga omnes or ultra partes, to private actions previously filed and denied by an unappealable judgment, where the process has not been suspended. Therefore, we argue for the flexibility of the matter adjudged (res judicata), which led to the denial of the claim in the private action. Thus, we avoid the contradiction of judgement for the defendant in private actions and judgement for the plaintiff in class lawsuits with the same claim based on the same cause of action, for the benefit of legal certainty and the priority that should be given to collective res judicata, erga omnes or ultra partes. Also as grounds for this argument, we invoke the principle of equal rights for all, with prevalence of equal protection of the law of the matter adjudged, which should be respected in the interest of certainty rather than uncertainty in legal relationships. Therefore, this paper, supported by jurisprudence, also advocates compulsory suspension of the course of private actions whilst class actions are being adjudged, regardless of the wishes of the interested parties, in the same way as occurs in judgement of repetitive appeals, according to Articles 543-B, first paragraph and 543-C, first paragraph of the Code of Civil Procedure. Thus, we avoid the risk of conflicting judgments and, further, we reduce the huge number of lawsuits before the Judiciary, which is one of the goals of class action lawsuits. For this purpose, this dissertation supports the need for alteration of the text of Article 104 of the Consumer Protection Code to adapt it for the benefit of good legal practice.