Juizado especial federal: contributo para um modelo democrático de justiça conciliativa

Abstract

The thesis develops the theme of conciliation in Special Federal Court, a micro system of the Federal Justice. The research presupposes the intertwining of the ideas of conciliative justice, democratization, and the increase of the level of citizenship in Brazilian society. The crises of the State of Well Being – political, ideological, philosophical, financial, and demographic –, which drastically affect the level of the social services that are its essence, are analyzed in the context of the metamorphosis of the post-modern socio-juridical context and its consequences to the State monopoly of Law and justice, which was rewritten as from juridical pluralism and multi-contextualization. To the purposes of this thesis, the main negative externalities of the withdrawal of the State of Well Being are the limitation of social rights and their consequent bringing to courts. The Administration of Justice’s response to that, in Cappelletti’s and Garth’s third globalized wave of reforms on the accessibility to justice, came, in Brazil, with the Special Courts, conceived as an informal and conciliative proximity justice. The overwhelming volume of litigation on social security rights, however, has negatively impacted the functionality of Federal Special Court, whose deficient structure cannot answer to the demand on reasonable time and with the desired quality. These courts tend, then, to simplify their procedure, abandoning their structuring principles of summarization, orality, and consensuality. By being distant, they are unable to function as either an informal or a conciliation justice. Without a theory on the administration of the typical conflict of the Special Federal Courts, which has the State as a litigant and rights of patrimonial nature as object, the fundamental idea of consensuality resumes itself to the voluntarism and personal effort of some of their judges. With no encouragement, public attorneys have never fully engaged in Brazil’s National Council of Justice’s (Conselho Nacional de Justiça) judiciary policy of adequate treatment of conflicts, and, when they do join in the litigation, it is with the sole purpose of saving on financial damages that arise from unquestionable rights that should be fully satisfied. This thesis’ most relevant contribution is to propose a procedural turn so that the preliminary conciliation hearing, which is the ideal moment and opportunity to bringing the litigants together and establishing a dialogue between them, is effectively designated by judges, as is disposed by articles 16 and 17 of Law no. 9099/1995, 334 of NCPC, and 27 of the Law on Mediation and Conciliation (Law no. 13140/2015), taking the constitutional principle of consensuality on Special Courts seriously (article 98, I, of the Brazilian Constitution).