A admissibilidade, de lege lata, do processo coletivo passivo no Brasil fundada na reconstrução interpretativa do Sistema Integrado de Tutela Jurisdicional Coletiva

Abstract

This dissertation aims to find out whether the integrated system of collective judicial protection in Brazil allows, de lege data, the passive collective process. The legal texts those rules out the abovementioned system states the prescription of techniques for effective collective legal situations (collective rights lato sensu) and erected the active collective process as an instrument for the defense of human groups. However, the performance of such groupings can harm or threaten subjective rights (individual or collective), and there are also hypotheses in which collectivities have to simply observate states of subjection related to potestative rights. According to concrete examples of the Brazilian forensic practice, the passive collective process is the instrument that provides the judicial protection to impose to the groupings the respective passive collective legal situations (legal duties or states of subjection diffuse, collective stricto sensu or individual homogeneous). The central aspects of the American class actions examination, that expresses prediction of action against the class (defendant class action), allows to extract subsidies for the assimilation of the passive collective process in Brazil, especially as regards the understanding that the clause of due process of law has corollary principles, among the adequacy as representation stands out. In a laws post-positivist perspective it must be recognized that all applicable principles to collective procedural law are normative and the CR/88 is the light filter whereby the collective procedural law must be understood. Thus, the investigation into the admissibility of the passive collective process in Brazil does not preclude understanding it in light of the constitutional principles of the jurisdiction inafasability, the process effectiveness and collective due process of law. Based on the development and the equalization of these premises that it is tried to elucidates the possibility of sense interpretation of the normative statements present in the statutes of the collective judicial protection integrated system, in order to certify the legal feasibility of passive collective proposition action against an intermediary entity to impose on the collectivity by substituted procedurally the observance of collective legal passive situations. It also seeks to ascertain whether, in addition to admitting the judicialization of this type of demand, the integrated system said has rules capable of regulating its procedural aspects, with an emphasis on identifying who can exert the substitution of the community in the passive pole and for the discipline of extending the claim preclusion to its regardless members of the outcome of the judgment.