A (in)compatibilidade do incidente de resolução de demandas repetitivas com o modelo constitucional de processo: a participação democrática do juiz e das partes na construção do provimento jurisdicional

Abstract

The present research critically examines the Repetitive Demands Incident Resolution established by Law 13105; March 16th 2015, showing its incompatibility with the constitutional model of Brazilian civil procedure. This class incident endowed with binding effect has the purpose of bringing celerity and uniformity to the interpretation of the repetitive matter of law in many demands. This research addresses the juridical nature of the incident, the suitable hypothesis, the legitimacy, the procedure and its trial effects, focused on the way that affected parts participate as well as their fair representativeness in addition to the impact on jurisdictional first instance judge work. Therefore, the study has addressed the necessary conflict between the mass incident and the democratic participation guarantee, parting from the adversary proceeding´s concept, considering Fazzalaris theory constitutional view, in order to demonstrate the importance of the interested parts participation as well as the judge´s role in the construction of the state provision. The study focus on Italo Andolina and Giuseppe Vigneras Italian civil procedure unique constitutional model, yet on Comoglios perspective of the fair process, perfectly suitable to Brazil due to its constitutional guarantees. The study supports the idea that the new institute transforms the adversary proceeding in mere legal fiction in order to guarantee the celerity on the standard interpretation of a legal matter discussed in many actions. The new legislation does not ensure control of the suitable representation of the parties that will be affected by the trial and the right to opt-out of its effects, featuring unproportional restriction on access to Justice. Finally, the research shows that the ordinary courts cannot be considered precedent cuts and also that it is inadequate to define the IRDR as a bind precedent. Only the Supreme Courts, that are the higher level in judiciary organization, should play the role of the Court of Precedent. It also shows that, according to the Supreme Courts precedents in Brazil, the common law cannot establish binding force to any court judgment, being incompatible with the judicial independence, which is an essential guarantee of the constitutional process model.