O processo coletivo e o papel da coletividade ausente: a afirmação de um contraditório transcendente

Abstract

This work aims to analyze the possibilities emerging from a more dynamic model of procedural engagement of the so-called absent class members during a multi-party litigation procedure in Brazil. It is proposed a new concept of civil procedure, considered as an important public space for open deliberation and decision, which calls for a reconsideration of theories and theoretical approaches related to the assurance of a proper day in court with respect to the claims for a more democratic relation within the Judiciary branch. With eyes directed to Brazilian multi-party litigation procedures, however, it is important to confront the logics of political representation established between the legal representative and the presupposed absent members. This relationship, despite being the reason for the asymmetric multi-party relations, cannot determine the absolute exclusion of class members from the judicial stage. Asserting a strong claim to a transcendent procedural dialogue, not only ensures an advance in Court s decision legitimacy, but also allows a more qualified use of procedural means and strategies by the so-called formal parties , as well as an effective respect in regard to the political representation established even in such cases related to the peculiar standing to sue criteria applied, according to Brazilian procedural law.