A “TRAGÉDIA DA JUSTIÇA” E O PRIVATE ENFORCEMENT: BREVES APORTES

BREVES APORTES

Abstract

: The Brazilian civil process is experiencing a “tragedy of justice” scenario: it is slow (a process takes, on average, more than 5 years to complete its life cycle), inefficient (Brazil is the worst country among its neighbors in terms of efficiency of civil justice) and expensive (more than 100 billion reais are spent on the judicial structure, 1.3% of GDP, which is practically double what the European Union countries spend on their respective structures, obtaining results much more satisfactory in terms of efficiency of justice), which creates structural incentives for demandism and widespread non-compliance with contracts and Court orders. As a possible solution to this scenario, the use private enforcement as a fundamental factor in the effectiveness of the fundamental right of access to justice arises from technological advances and changes in social reality. Counterintuitively, the use of the private route can maximize the capacity to deliver effective judicial protection, since it implies gains in efficiency by changing the classic order of due legal process and delegating to the state jurisdiction (of knowledge and execution) only the cases whose self-enforcement is not possible. However, to fit this piece into the current puzzle of the Brazilian civil process in a dogmatically adequate way, especially with the reinterpretation of classic procedural institutes such as the state's exclusivity in the use of force and the indefeasibility of jurisdiction, it is necessary to understand that the guarantees procedural processes are ductible and the process itself constitutes an essentially cultural element, so that the contextual changes of society are not contained by the process, but rather absorbed by it. Therefore. The review of some of the old procedural dogmas in the face of the new paths opened by technological advances and social changes is an unavoidable path towards a procedural dogma that presents effective responses to modern problems, as is the case of the demandism that suffocates Brazilian courts.