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The repetitive demands incident resolution under the draft new code of brasilian civil procedure: analysis, criticism and suggestions

Grant number: 13/07861-1
Support type:Scholarships in Brazil - Scientific Initiation
Effective date (Start): July 01, 2013
Effective date (End): December 31, 2013
Field of knowledge:Applied Social Sciences - Law
Principal Investigator:Yvete Flávio da Costa
Grantee:Rafaella Coselli Sborgia
Home Institution: Faculdade de Ciências Humanas e Sociais (FCHS). Universidade Estadual Paulista (UNESP). Campus de Franca. Franca , SP, Brazil

Abstract

This study analyzes the repetitive demands incident resolution, under articles 930-941 of the draft new Code of Brasilian Civil Procedure(PL 8.046/10 which replaced the PLS 166/10). This institute has been studied and discussed by the academic community and is considered, by some , a big progress to the speed of the procedure, legal certainty and effectiveness of judicial review, by fleshing into an instrument of access to justice. However, for others, this incident is unconstitutional for violating the minimum guarantees of due process (contradictory, double jurisdiction, free judicial conviction, among others). Against this background, this study aims to examine how the incident resolution demands repetitive is designed, having as main scope of comparative law analysis, investigating the major institutes procedural adopted by foreign countries to collectively address the individual repetitives demands, order that, based on the experience already experienced by these countries seek ways to make the incident a tool designed for execution of a fair adjudication, shaped the Brazilian legal reality. Indeed, this study will investigate the German institute, called Musterverfahren, which significantly influenced the paternal incident, the English system (Group Litigation Order), the American model of Class Actions and adequate representation of class actions, and the canadian model of Class Actions.