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Navegando Dissertação por Autor "Araújo, José Henrique Mouta"

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    O controle judicial do incidente de resolução de demandas repetitivas: reflexos perante a administração pública e um novo padrão de relação entre os poderes no constitucionalismo brasileiro do século XXI
    (Centro Universitário do Estado do Pará, 2017-08-25) Neves, Felipe Portella; Araújo, José Henrique Mouta; Góes, Gisele Santos Fernandes; Dias, Jean Carlos
    This research intends to analyze the influence of the decision of the Group Order Litigation, created by the Civil Litigation Code of 2015, over the public administration, mode specifically over the administrative bodies, organs and regulatory agencies that are affected by the formation of the legal thesis fixated in the respective incident, according to article 985, paragraph two of the Civil Litigation Code of 2015. With the inefficiency of the State to fulfill the functions incumbent on it, there is a perceptible increase in the judicialization, in which increasingly important issues are being decided by the Judiciary, especially when the legislature and executive cease to act or act unduly. On the other hand, the effect of the judicialization has generated the massification of conflicts, which generated the need to recognize rights with a predominantly collective dimension to contribute mainly to the treatment of the dissemination of individualized rights, which have homogeneity traits among them. However, the work will demonstrate that the collective mechanisms created by the legislations were insufficient to combat mass litigation of a homogeneous nature, failing to contain the multiplication of actions promoted in the judiciary, especially those originated by the same legal-factual question. Therefore, it was necessary, under the laws of Germany and England, to create, through the Civil Procedure Code (Law no. 13.105 / 15), the Incident of Resolution of Repetitive Demands to facilitate the processing and judgment of mass demands properly. This procedural instrument, however, because it has a strong binding character, before the judiciary and the public administration, has been questioned about the possible violation of the principle of separation of powers. In spite of doubts about its constitutionality, the present work will demonstrate that the incident seeks to break the traditional paradigm of separation of powers, based on the premises of Montesquieu, in as much as it proposes to achieve an integration between the powers (Legislative, Executive and Judiciary), through conciliation, communication and cooperation.
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    O IRDR como política pública judiciária: a proteção ao princípio da igualdade a partir da adequada representação
    (Centro Universitário do Estado do Pará, 2018-02-05) Menezes, André Beckmann de Castro; Araújo, José Henrique Mouta; Dias, Jean Carlos; Guedes, Jefferson Carlos Carús
    The incident of resolution of repetitive demands (IRDR) was created by the Legislative Branch as a judicial public policy, aiming to reduce the number of lawsuits in process, directly reaching the repetitive issues arising mainly from mass legal relations. Its foundations are the constitutional principles of celerity (efficiency), legal security (predictability) and equality (uniformity of decisions). Despite being a consequentialist instrument, the IRDR is an innovative Brazilian creation, inspired by several foreign institutes, that aims at the establishment of legal theses on controversial issues to guarantee the constitutional principle of material equality. The same jurisdictional provision for parties in identical factual-legal situations is a consequence of the application of material equality. The different procedural treatment given to all the subjects affected by the uniformity of the legal theme also stems from the same principle. Because it has the nature of a repetitive collective process, its rules need to be understood differently from those applicable to the traditional individual process. The re-signification of the principle of equality, therefore, was made based on Marcelo Neves’ theory of circularity between principles and rules, also absorbing the theory of systems of Niklas Luhman. The self-referential legal system, limited by the Federal Constitution, allows the principle (equality) to guide the norms (IRDR) and, at the same time, to receive its meaning. The juridical system, at the same time, heteroreferent, also allows the principle to be explained by external values (contingencies) of the surrounding world (public policies). This understanding requires the applicator of the norm to take some cautions already authorized in the system, especially with the publicization and with the choice of model cases, in order to provide adequate representation. Comparative Law is an important source of evolution in the act of processing IRDR in protection of material equality.