Reflexões sobre as consequências jurídico-processuais da errônea indicação da autoridade coatora no mandado de segurança à luz do princípio da máxima efetividade constitucional

Abstract

This conclusion of course work aims to analyze the accuracy of a particular legal understanding still influential in the Superior Court of Justice, which, in the face of erroneous indication of enforcement authority in the writ of mandamus, postulates the dismissal without merit resolution by illegitimacy passive ad cause, although there is no change in the legal entity to which it belongs. To that purpose, we investigate who actually occupy the defendant's position in the writ, starting from the assumption that it would be the legal entity to which the enforcement authority belongs and not authority itself. It is argued that the agent would not possess ius postulandi to personally practice defensive procedural acts in the defendant's position of the writ and yet would be devoid of ordinary legitimacy for validly occupy that position in the lawsuit. Based on this hypothesis, we seek to further analyze alternatives to the termination of the procedural relationship, to ensure the effectiveness of the injunction improperly filed. In this sense, it is considered the possibility of amendment to the initial complaint, correction ex officio by the judge and declination in cases in which the change of the enforcement authority leads to modification of the natural judge.