A legitimação ativa nas ações coletivas: um contributo para o estudo da substituição processual

• Ano de defesa: 2003
• Autor(a) principal: Tereza Cristina Sorice Baracho Thibau
• Tipo de documento: Tese
• Tipo de acesso: Acesso aberto
• Idioma: por
• Instituição de defesa: Universidade Federal de Minas Gerais; UFMG
• Palavras-chave em Português: Direito; Interesses coletivos; Partes nas ações (Direito) Brasil; Processo civil Brasil; Substituição processual; Direito constitucional; Representação (Direito processual)
• Link de acesso: http://hdl.handle.net/1843/DIRE-5SFJMX

The objective of this doctoral thesis is to analyze all possible ways ininterpreting the present-days Brazilian National Law, which assignment is to promote protection of the third generation new rights or interests, called trans individual, that has been risen to the fundamental warranties category. The Judicial Process Law discussions imposed by mass conflicts that are seen nowadays as globalization phenomena reflex, collectivism and popularization trend, imposed on social relationships, lead us to believe in the public law privatization and in the private law publicizing. This situation was analyzed focusing, first, thetraditional juridical doctrine, and afterwards new items in order to adequate it to the needs ofthe present-day law. Taking that into account, it became necessary to exam the active legitimating ofthe intermediate figures to which the law has pointed as representative of the groups in Court. As part (ideological author) in the collective juridical process, theintermediating figures will be affected by all rights and obligations, applied by the process conditions. It would also be possible to imagine these representatives as process substitutes ofcollectivism (extraordinary legitimating). The juridical nature of active legitimating of these intermediating figures is subject to further discussion; there are tendencies of the doctrine to discriminate it according to the sort of trans individual interest that is needed to protect (diffuse, collective or homogeneous individual). It is believed that this juridical nature is of acollective institutional legitimating as a tertium gemus, which is characterized by presenting traces of collective, extraordinary and ordinary legitimating, simultaneously. Furthermore, considering that there is more than one legitimated figure to act in Court in the name of the collectivity, this legitimating will be equal in rights to act and also disjunctive. Besides the legitimating to juridical act, it should be examined the level ofinterest that the representatives need to demonstrate in order to meet the conditions to exercise their rights. This juridical process interest is measured by political adequate choice made by the Law to indicate the General Attorney's Office, the public figures, the entities of direct and indirect public administration departments, and associations (unions), as collectivity representatives. This choice was based both in the socialimportance of the juridical properties guarded in collective actions, and also in the potentiality and capacity ofperforming that those figures might have in this subject field. Examining the juridical proceedings that comprise the acfive legitimating and the intermediating figures interest in performing, besides the object and the effects of the judged matter in the collective actions, it should be verified that there is no perfect adequacy of the processing substitution intrinsic to the position hold by thoseintermediating figures in the juridical process. However, it cannot be denied that there are also similarities between the juridical institute of the process substitution and the condition of the collective institutional representative of those mentioned before. The juridical process law itself, as it is, does not make it easy to be safely interpreted in this subject area. Nevertheless, what can be seen is that there was a change, by juridicalfiction, in the "part" concept, being considered "part" the one that was legitimated to propose the juridical action, and that fact became essential for the processing law being able to comprise collective conflicts.On the other hand, there is within the Brazilian Law, an integrated systemthat protects the trans individual rights and interests represented, essentially, by people, public civil and collective actions of the Costumer Defense Code, which satisfies the access of these individual rights and interests to the Justice. It cannot be forgotten the individual means that is always opened and upon which, the use of collective meanswill not lead to a pending juridical action. It is necessary that the people who deal directly with Laws obey this integrated system to avoid deviations and mistakes related to the relevance that the theme deserves, although, this theme conti