Análise econômica e comportamental do processo civil: como promover a cooperação para enfrentar a tragédia da Justiça no processo civil brasileiro

• Autor(a) principal: Wolkart, Erik Navarro
• Data de Publicação: 2018
• Outros Autores: [e-mail]
• Tipo de documento: Tese
• Idioma: por
• Título da fonte: Biblioteca Digital de Teses e Dissertações da UERJ
• Texto Completo: http://www.bdtd.uerj.br/handle/1/17363
• topic: Civil Procedure; Cooperation; Principle of cooperation; Cooperative model; Good faith; Processo Civil; Cooperação; Princípio da cooperação; Modelo cooperativo; Boa-fé; CIENCIAS SOCIAIS APLICADAS::DIREITO::DIREITO PUBLICO::DIREITO PROCESSUAL CIVIL

This thesis deals with the promotion of cooperative behavior in the Brazilian civil procedure as a way to build a system of justice capable of offering fair and effective judicial protection within a reasonable time frame. The theoretical matrix which shall be used are the welfare economics, the classical economic analysis of law, behavioral economics (and the corresponding behavioral law & economics) and deep pragmatism (neuroscience of morality). Using a variety of microeconomic techniques (mainly game theory), updated by the insights of behavioral economics, it is demonstrated how judges, lawyers and parties can effectively cooperate for the efficiency of the system, prior to the filing of the action until the effective enforcement of judicial decisions. In Chapter 1, we outline the tragedy of justice scenario, analogous to the economic scenario of the tragedy of the Commons. In Chapter 2, we present a brief history of the economic analysis of law in the world and in Brazil, identifying its state of the art. In Chapter 3, we present the theoretical and philosophical matrices used in this work. In Chapter 4, we present the current doctrinal conception regarding what is cooperation in the Brazilian civil procedure. In Chapter 5, we demonstrate that this conception is completely dissociated from the nature of cooperative behavior as an evolutionary feature, such as defined by biology and applied by economics and by psychology in the study of human behavior. In this same chapter, we demonstrate that the cooperative duties as defined by legal scholars nowadays contribute little to the construction of a civil legal system capable of offering judicial protection that is fair, effective and rendered within a reasonable time frame. In Chapters 6 to 10, we identified some cooperative behaviors needed to promote a civil legal system with such qualities. We identify the existing incentives and the need to create new incentives so that judges, parties and lawyers can behave cooperatively, since before the beginning of the lawsuit until the execution, with special attention to the possibilities of alternative dispute resolution and the effectiveness of judicial decisions. In Chapter 11, we discuss the possibility of cooperative disruption caused by the application of technology in civil procedure and in the functioning of the legal system as a whole, with special attention to the potentialities of artificial intelligence. Finally, we conclude that the current rules of civil procedure do not produce sufficient incentives to promote cooperation between procedural subjects, but we attest that these incentives can be normatively and administratively gauged so that, with the aid of technology, the scenario of tragedy of justice is overruled and replaced by a civil legal system capable of delivering a fair, effective and timely judicial protection