A legitimidade ativa do Ministério Público e da Defensoria Pública para proporem ações coletivas

Abstract

Collective actions have been gaining strength to function as an instrument to guarantee access to justice, the realization of substantive law and procedural economy in a context of massification of social relations. The objective of the present work is to carry out a study of the legitimacy ad causam in the scope of the collective process, verifying, primarily, the legitimacy of the Public Ministry and the Public Defender's Office. The hypothesis raised is that, despite the active legitimation model instituted in Brazil being the ope legis, there is the possibility of arguing in favor of the feasibility of the Public Ministry and the Public Defender's Office to propose other types of collective actions, in addition to those expressly provided for into law, based on a systematic and teleological analysis of the law. The methodology through which the present study was developed was based on a construction of knowledge initiated from the survey of the initial hypothesis in the face of a bibliographic review with a focus on studies on conglobante legitimation. In addition, not only a critical and qualitative analysis of the laws that are part of the collective protection microsystem was carried out, but also an examination of the jurisprudence on the subject. In fact, from the methodology used, it will be possible to confirm the initial hypothesis that there is theoretical substrate for the defense that the Public Ministry and the Public Defender's Office can propose collective actions even without the express legal provision. Finally, in order to propose a new guise to the model of ad causa legitimacy of the brazilian collective process, some elements of the American institute of class actions will be presented, in order to present an interesting mold that can serve as an influence for a change in the traditional system brazilian.