A fluid recovery brasileira e o descompromisso com a tutela jurisdicional efetiva : em busca de alternativas

Abstract

Regarding the enforcement of diffuse and collective rights, stricto sensu, the rule is full reparation in natura. That is because, in case of transindividual rights, as they are provided with indivisibility and unavailability, their eventual injury does not allow a prima facie economic valuation. On the other hand, when it comes to homogeneous individual rights, the rule is the pecuniary repair of the damage, considering that, according to the command under the Article 95 of the Consumer Defense Code, the judgement made in these lawsuits must be generic. Thus, it is duty of the victim, his/her successors or other lawful parties to promote the enforcement of the generic judgement. It occurs that, due to either the difficulty in accessing the judiciary or the lack of knowledge of the right recognized in a judicial decision, the number of interested parties qualified to promote the execution was frequently minimal when compared to the severity of the damage committed by the collective defendant. Thus, in order to avoid the inherent flaws in the individual enforcement of these generic collective sentences, the Brazilian legislator started authorizing a new type of enforcement of homogeneous individual rights. It is a residuary execution, located in the Article 100 of the Consumer Defense Code, according to which "after the period of one year has elapsed without the qualification of interested parties in a number compatible with the seriousness of the damage, the lawful parties of Article 82 may promote the liquidation and execution of the due indemnity. The present work proposed, in this sense, a critical analysis of how the institute works, aiming at the need to grant the effective protection of the rights of the party under jurisdiction, the main purpose of the jurisdiction of the Rule of Law. It has been observed, through the literature studied and empirical data gathered, that the technique in the Article 100 of the Consumer Defense Code has little or no similarity to the American fluid recovery as well as being inappropriate - when analyzed considering the primary function of contemporary jurisdiction - and ineffective - when considering the "reparatory" results obtained on behalf of aggrieved homogeneous individual rights. In view of such data, alternatives to the problem were brought forward based on the procedural legislation in force and on comparative law.