Author: José Roberto de Albuquerque Sampaio

Source: Valor Econômico - São Paulo / SP - LEGISLATION & TAXES - 29/03/2010

A commission was created by the Federal Senate, formed by distinguished proceduralists, with the purpose of elaborating a preliminary draft for the edition of a new Civil Procedure Code (CPC). The first stage of the work of this commission has already been completed. Some propositions were presented that will serve as a guide in the development of the preliminary project.

One of the propositions is to “include in the General Part, in part proper to the legitimacy to act, a collectivization incident (provisional name), referring to the legitimation for mass demands, with prevention of judgment and suspension of individual actions”.

There's no doubt. The idea of ​​unifying the judgment of demands that involve collective interests, in ordinary instances, to avoid conflicting decisions, is highly commendable. However, some care must be taken.

The safest way to simplify the process, one of the proposed reform guidelines, is not to create a new procedural incident. On the other hand, it leans towards extinction of existing ones. The creation of a new collectivization incident, as proposed, with all due respect to the contrary opinions, is at odds with the spirit that has been guiding the construction of the new code.

The creation of a new procedural incident should be avoided, since, ordinarily, it raises new procedural quizzes that end up creating embarrassment to the procedure, in addition to overwhelming the courts with resources.

It cannot be forgotten, regarding the point, that there is already a legal mechanism, within the current procedural legislative framework, able to satisfactorily meet the demands involving collective interests. Aside from the procedures available, within the system of concentrated control, public civil action is sufficient to resolve universal disputes - although its procedure must be updated to the reality of justice.

It is true that the system in force today is not immune from criticism. The most common one condemns the possibility of conflicting decisions, in the case of multiple demands. To overcome this inconvenience, however, instead of creating a new incident, it would be enough to improve the rules governing the suspension of similar processes.

When determining the suspension of repetitive demands, one could choose one or more processes, preferably collective actions, initiated by the Public Ministry or class associations, with better representation (eg Idec). The suspension of similar cases could be determined by the Superior Court of Justice (STJ), due to a conflict of jurisdiction - there is already precedent in this regard, see CC 107.932. It would be enough for that reason that the legal concept of connection of causes will be extended to cover repetitive demands.

The choice of more than one collective demand should, whenever possible, be the first option. The diversity of causes, being processed under the command of different magistrates, more in line with our procedural system, guarantees a greater contradiction on the subject, as well as facilitating the access of interested parties to justice.

Another reason: experience teaches that causes of relevant economic value, as collective demands are usually, often attract undue interference with the magistrate who leads the process. The choice of more than one magistrate to deal with collective demands, in these circumstances, would certainly mitigate the harmful effects that this type of external interference can generate in the processing and judgment of the causes.

It would also be recommended that the choice of collective demands representing the controversy should fall on collective proceedings in process in different locations, when the cause is on national issues. The competence to judge a class action of this nature must be the district of the capital. In this way, inconveniences for the jurisdicted are avoided (capital is presumed to be the easiest place to access) and more legal certainty is given (the jurisdiction of the capital, as a rule, is better equipped). It would also be convenient for these processes to go through specialized courts (such as, for example, in Rio de Janeiro, business courts).

Regarding individual processes, the concentration of processing and judgment of collective demand may generate some perplexities. At least one deserves special attention. If the collective process were to suspend all demands on the same topic, without distinction, we could face the following situation: the plaintiff, who had his process suspended right at the beginning, is obliged to wait for years until the final judgment of the case collective. Resuming the continuation of the deed, the judge verifies that the plaintiff is an illegitimate party to the case, judging, then, that the process is extinct. The same could happen in relation to prescription, among many other hypotheses.

Is this reasonable? Could it be that, in these hypotheses, the constitutional clause that ensures all citizens a fast and effective process is being fulfilled? I remember that in these cases, no gain, in terms of the quality of the judicial service, will be achieved. Instead. There will be loss.

Judges will have to prosecute and judge these cases in the same way that they would if they faced the merits, under the focus of preliminary questions. The courts, ditto. The process, in turn, will take twice as long - collective process plus individual process.

Suggestions for overcoming, or at least, minimizing the problem: the collective process must have priority processing; the suspension of the individual process should only occur after the clearance order; and the judge would be allowed to grant the interim relief (subject to the right to appeal). I hope, with these considerations and suggestions, I have contributed to the enrichment of the debates.

José Roberto de Albuquerque Sampaio is a lawyer and master in procedural law at UERJ.

This article reflects the views of the author, and not of Valor Econômico newspaper. The newspaper is not responsible and cannot be held responsible for the above information or for losses of any kind due to the use of this information.