Autocomposição em processos envolvendo a Fazenda Pública : possibilidades, fundamentos e limites

• Autor(a) principal: Castro, Andressa Oliveira Cupertino de
• Data de Publicação: 2018
• Tipo de documento: Dissertação
• Idioma: por
• Título da fonte: Repositório Institucional da Universidade Federal do Espírito Santo (riUfes)
• Texto Completo: http://repositorio.ufes.br/handle/10/10410
• topic: Consensual solutions; Public Administration; Autocomposition; Access to justice; Contention of litigation; Conciliation; Alternatives disput resolutions; Autocomposição; Soluções consensuais; Litigiosidade; Direito Processual Civil; Brasil. Procuradoria Geral da Fazenda Pública.; Acesso à justiça; Administração pública; Conciliação (Processo civil); 340

The work adopts as a research problem the verification of the slowness faced by the Judiciary because of the stimulus to the litigation to solve the conflicts verified in our society. Millions of lawsuits are filed annually, many of which would not need to be submitted to a judge's decision if the parties took an active role and were willing to engage in dialogue. The increasing number of lawsuits makes it difficult for the Judiciary to provide a fair and satisfactory decision, since a congestion rate of 73% is currently observed for the end of a lawsuit. The Administration, once it represents the interests of the community and has the duty to protect the rights and guarantees set forth in the Constitution of 1988, is one of the largest litigants in the country, both in the active and in the passive poles of litigation, contributing to the excess of litigiousness. Based on these findings, the paper adopts as a theoretical premise the fact that the Code of Civil Procedure has made an option for the consensual resolution of conflicts, in its art. 3, paragraph 3, extending this idea to the Admonistration (article 3, paragraph 2 and article 174). With this duty to stimulate the adoption of consensual solutions, especially for the Administration, the study began to develop the means by such a policy could be implemented, with emphasis on the realization of selfcomposition through agreements, defending such possibility. For this purpose, the legal grounds, the theoretical justifications and the limits to be respected for the self-composition by the Administration are described. The conclusion the study came up with was that the agreements by the Government can be considered as a way to contain litigiousness, based on the odedience duty of principles like legality, supremacy and the unavailability of the public interest, and since are observed the limits defined by the legal system. The adoption of consensual solutions by the Administration also makes it possible to grant adequate, effective and fair endings to the conflict, contributing to the reduction of litigation and increasing the right to access justice by the citizens (article 5, XXXV of the Federal Constitution).