A tutela coletiva dos direitos individuais homogêneos e o incidente de resolução de demandas repetitivas

Abstract

For political-legislative reasons, the Brazilian law allows that certain individual rights receive collective treatment, by means of an action that has become known as the Brazilian class action, which can be found in the country’s consumer’s code. This species of individual rights has been called homogenous individual rights both by the doctrine and the legislation. It happens that because of the latest legislative reforms, the possibility of a unique treatment to these rights has uprisen in the incident for the resolution of repetitive demands — a new technique for collective judgement. What this work focus on analysing, through bibliographic review regarding the matter, is the overlaying spectrum of the class action for the new institute and how this phenomenon can impact the Brazilian citizen, who thoroughly lacks of collective treatment to their rights. A juridical blank has sprung, left by the legislative abstention regarding points that, even though by means of court praxis, have already been historically regulated in the class actions, such as the binding effects of the sentence, legitimacy and opt-in and out mechanisms. Therefore, several doubts have emerged concerning the applicability of the new incident and its possibility to be considered, in fact, a preferable alternative to the class actions, given that both procedures, at their birth, seek for treatment equality to the parties, celerity and access to justice. What could be noticed, at the end, is that, if there is the common features prevail and if the class action proves to be superior in terms of efficacy of the decision, then the adequate would be the way shown by the action of the consumer’s code.