A participação adequada no incidente de resolução de demandas repetitivas: escolha de líderes e contraditório colaborativo

Abstract

The present work is dedicated to the study of the relationship between the “incident of resolution of repetitive demands” (IRDR) and the fundamental right of participation. Considering the innovative nature of this instrument – identified because: i. it aims at solving controversial and repetitive questions of law, with the establishment of a legal thesis (and not conflicts of specific substantial rights); ii. it imposes the limitation of direct participation on the part of the subjects whose spheres of law will be affected by the resulting judicial pronouncement, without, however, these being replaced by a third person, legally legitimated to defend their rights as if it were their own (as it occurs in the Brazilian version of class actions); iii. it assumes the purpose of concentrated creation of a binding precedent – it is assumed the insufficiency of traditional participatory mechanisms for its operationalization. Thus, based on the understanding that participation, in order to be appropriate for the members of the community to which the legal thesis is intended, must be seen from the point of view of its usefulness, we will seek to analyze the ways in which the contradictory can be exercised in this procedure, focusing on the figure of the “leaders” and their necessary interlocution with the ones who are lead.