Autocomposição extrajudicial obrigatória nos juizados especiais: sua (in) constitucionalidade

Abstract

The present work seeks to analyze Minas Gerais Court of Justice IRDR 91 and its impact on the configuration of interest in acting in small courts. The objective is to analyze the relationship between the Constitutional principle of Inevitability of Jurisdiction, the Interest of Acting in Court, in order to discuss the (in)constitutionality of the requirement of a prior attempt at an extrajudicial solution to Obtain Jurisdictional Protection, as provided for in the IRDR- 91 admitted by the Minas Gerais court. The methodology adopted for this work was bibliographic and documentary in nature, using the hypothetical-deductive method. Through the study carried out, it was found that self-composition, when mandatory, brings both positive and negative impacts to the judicial system. On one hand, it promotes procedural speed, on the other hand, the imposition of this prior attempt at conciliation raises questions about the real effectiveness of the procedure, especially in situations where there is an obvious disparity of power between the parts. Therefore, it was concluded that instead of a generalized imposition, it would be more appropriate for the attempt at conciliation to be encouraged, but not mandatory in all cases. Flexible proposals include the exemption from conciliation in specific cases, such as those involving unavailable rights or when one of the parts demonstrates a clear refusal to negotiate.