A (in)eficácia da tutela coletiva dos direitos individuais homogêneos do consumidor frente às demandas repetitivas: em busca de soluções profícuas

Abstract

This undergraduate thesis deals with the problem related to the multiplicity of repetitive individual demands pending before the Judiciary, especially in the area of consumer law, notwithstanding the existence of a procedural instrument, in the national legal system, capable of guaranteeing the defense of homogeneous individual rights collectively. The central hypothesis of the investigation is that the protection of these group rights is ineffective, especially in view of the legal culture of the preponderance of the individual case, to the detriment of the collective one and, consequently, the inadequacy of collective actions in this follow-up. In view of this, the objective was to analyze the aforementioned context of mass litigation and to propose solutions for the improvement of the above procedural tutelage. For this purpose, the inductive, deductive, argumentative and hermeneutic methods were used, as well as the exploratory, bibliographical research and the case study. The work was developed in four chapters, in the first, a brief digression about the conformation of the collective process in history and its development in Brazil, emphasizing also general aspects about its current format. Subsequently, the context of repetitive litigation and limitations on collective actions was examined, as well as the role played by CPC-15 in this scenario. In the third chapter, case studies were carried out in order to observe the problem in reference in the concrete plan and, from this, to continue the theoretical discussion undertaken. Finally, solutions were proposed to the problem investigated, namely: the creation of a collective process code; the adoption of the judgment of repetitive cases as a kind of collective process and instrument capable of protecting the homogeneous individual rights of the consumer; the insertion of the court as an active subject in the context of optimizing the protection of the rights in question; the necessary observance of the principle of due process of law for collective demands, respecting the specificities of the litigation object of judicial cognition. It was concluded that optimization of the collective defense of homogeneous individual rights requires measures directed to the improvement of collective actions and, on the other hand, to cope with the context of repetitive individual demands. Ensuring full access to justice for consumers requires effective procedural protection also at the collective level.