Acesso à justiça e inafastabilidade da jurisdição: limites e possibilidades da exigência de prévia tentativa de resolução extrajudicial

Abstract

This study examines access to justice in the Brazilian legal system through the lens of the tension between the constitutional guarantee of non-denial of judicial review and proposals requiring a prior attempt at extrajudicial dispute resolution as a condition for filing judicial claims. It starts from the recognition of a structural crisis in the traditional adjudicatory model, marked by hyper-litigation, delay, and the high costs of judicial proceedings, in order to analyze the conceptual evolution of access to justice—from mere access to the courts to access to appropriate means for the effective realization of rights. In this context, the study reconstructs the historical development of the justice system, analyzes the centrality of judicial proceedings and their limitations, and examines the emergence of the multidoor justice model and the dispute system design (DSD) technique as instruments for the institutional rationalization of conflict management. It then investigates Brazilian normative and jurisprudential experiences that link judicial proceedings with extrajudicial dispute resolution methods, demonstrating that the legal system already admits, albeit in a fragmented manner, pre-procedural and extrajudicial pathways. In its final stage, the study directly addresses the constitutional compatibility of requiring a prior attempt at extrajudicial resolution, through an analysis of the content of the right of action, the guarantee set forth in Article 5, item XXXV, of the Federal Constitution, and the categories of procedural prerequisites and legal interest to sue. It concludes that the statutory imposition of a mandatory preprocedural stage, when structured proportionately, tailored to the dispute, and embedded within a coherent dispute system design, does not in itself violate access to justice and may, on the contrary, serve as an instrument for its substantive promotion.