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The compatibilization of the collective guardianship in Brazil and Ibero-America: a movement towards justice

Grant number: 10/16098-1
Support type:Scholarships in Brazil - Scientific Initiation
Effective date (Start): February 01, 2011
Effective date (End): January 31, 2012
Field of knowledge:Applied Social Sciences - Law - Public Law
Principal researcher:Nelson Nery Junior
Grantee:Lauro Simões de Castro Bisnetto
Home Institution: Faculdade de Ciências Humanas e Sociais (FCHS). Universidade Estadual Paulista (UNESP). Campus de Franca. Franca , SP, Brazil

Abstract

The Constitution of the Federal Republic of Brazil of 1988 ensures principles like equal treatment inter partes, large access to justice and reasonable procedural duration (5th Article, caput and subsections XXXV, LXXXVIII, respectively). Surely Brazilian jurisdiction should be actually ruled basing on the illustrated rights, since the Federal Constitution holds a post of supremacy in our legal system and, thus nothing can contradict it; however it is, unquestionably, common knowledge the way which the federal courts is considered among the civilians. Their allusion has an everyday taste as being a slow proceeding, of late result, and also of completely unequal treatment before the parties. This one related to the capital and to the social influence of each litigant; that is why many people feel discouraged to legally seek practical accomplishment of their rights. Starting from this unpleasant reality, the Model Code of Class Proceedings to Iberian America, an initiative to smash the traditional barriers of our procedural system completely focused on individual actions and improve manners to give larger effectiveness and speed to judgement rendering: Class Actions. Thus, determined litigants who used to request countless lawsuits in the past, now they can be gathered in just one lawsuit, causing procedural economy and homogeneity of treatment, besides that, causes which had lower values in the past, thus discouraging the requests of lawsuits, now gathered, attained considerable amounts, incentivating regard for Judiciary. The present paper aims the theoretical demonstrations of the progress which would have in our legal system with the effective settlement of precepts defended by the aforementioned code, apart from doing a meticulous analysis of each entry defended by the diploma. Issues like the suitability of the class actions, its requirements, active and passive legitimation, connection, pendency, res judicata, judgement quod computet and so forth, doing the correlation with the class injunction system in the federal law.

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