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

Abstract

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.