Incidente de resolução de demandas repetitivas e representatividade adequada: a necessidade de controle judicial à luz da reinterpretação do princípio do contraditório

Abstract

The present work aims at the realization of a central proposal for a judicial review of the adequacy of representation in the “incident for decision about repetitive processes”. It can be noted that effective forms of participation of the litigants who had their processes suspended due to the introduction of the incident were not provided by the regulation of incidental procedure implemented by the 2015 Code of Civil Procedure. Considering the adversarial principle, understood as the possibility of the parties influence in shaping a decision that interests them, it is undeniable the difficulty of ensuring such a procedural guarantee, to awaiting the binding understanding to be set by incident. Given this, based on reinterpretation of the adversarial principle proposed by Mauro Cappelletti, will be shown that, in situations involving mass rights, as in the incident, the contradictory must be guaranteed to persons concerned who did not participate in the process through the performance of appropriate representatives, here understood as "spokespersons" who lead satisfactorily the interests of the group. For this reason, in view of the legislative omission of any form of control of the adequacy of representation concerning the incident, it will be proposed the use of guidelines for a judicial review of the parties that will lead the incident, in order to select the parties and lawyers better able to sustain the debate faced in the incident, so the Court can better consolidate the thesis that will be applied in the repetitive processes.