Administração pública como litigante habitual: a necessária mudança da cultura jurídica de tratamento dos conflitos

Abstract

The current crisis affecting the Brazilian judiciary system attests to the incapacity of the state legal authority to provide its citizens with an appropriate legal structure to deal with disputes. The inefficiency of the public legal service is not merely due to the structural and administrative flaws of the Judicial branch, but is also the reflection of a legal culture that places importance on an overly litigious pattern of practice. The perpetuation of a behavioral model grounded in wide-ranging litigation is related to the fact that the Government, at its various levels and spheres, is among those most responsible for the overwhelming engagement of the judicial bodies. Based on official statistical data, it may be shown that the Government features as the biggest repeat player litigant in the field of civil litigation. The problem to be addressed in this doctoral thesis, therefore, consists of questioning the manner in which the Governments role as repeat player contributes to maintaining and aggravating the crisis in the court system currently encountered in Brazil. This study aims to test the hypothesis according to which the change in the legal culture of dealing with disputes adopted by the Government constitutes an effective response to the imminent collapse of the legal system in dispute resolution. The proposal for overcoming the deficiencies in the states method of dealing with disputes involves the implementation, promotion and enhancement of techniques in consensual and extrajudicial prevention, management and resolution of disputes by the Government, through mechanisms that are integrated and supplementary to traditional judicial proceedings. From this perspective, the influx of consensuality in this process, the redefining of the classic pillars of administrative law, and recent legal incentives favor the wider implementation of appropriate procedures for resolving disputes in the government sphere. Consequently, public agencies and bodies acquire conditions conducive to the prevention of unnecessary judicialization, encouraging a rational management of burdensome judicial proceedings and settling disputes that arise between the Government and its citizens whether autocompositive or heterocompositive, both within the judicial sphere or extrajudicially.