A representatividade adequada no microssistema de tutela coletiva: a defesa do grupo no paradigma dos precedentes vinculantes

Abstract

The purpose of this thesis is to analyze the intersection between the action action legal system and the mechanisms for attributing binding effects to judicial precedents brought by the CPC/2015, according to the requisite of the adequacy of representation. The class actions, present in the Brazilian law context since the mid-1930s by the popular action, rely on rigid mechanisms of attribution of legitimacy for the filing of group claims and, on the other hand, for the result of the class action suits to be covered by the res judicata. The purpose of the class action system is to provide greater and better protection for the group interests, ensuring that the collective claim are always conveyed through the performance of a adequate representative. On the other hand, the binding precedents were introduced in Brazilian judicial law, above all, as of CPC/2015 without equal concerns being observed, including regarding their constitutionality. The goal was to give this tool the binding effectiveness inherent to the legislative text, aiming especially to combat the dispersion of jurisprudence and, at the same time, mass litigation. In this sense, binding effectiveness was given to these procedural mechanisms, attributing them a true normative nature, without ensuring adequate representation to the subjects directly or indirectly affected by the new normative hypothesis. For this reason, regardless of the necessary constitutional adequacy, it is necessary that the management of binding precedents be accomplished through integration into the class action system, especially with regard to the mechanisms for the attribution and control of adequate representation