Efetividade da tutela coletiva




In the history of mans efforts to have human rights recognized, we have conquered the assurance of freedom and equal treatment. Later, such elements have been added to other guarantees involving social rights, in a period in which Law was consolidated as an autonomous science. The philosophical basis that has given a form to contemporaneous laws has given procedural law an individualistic nature and, as such, it has reached the present time. In the middle of last century, with the advent of the humanistic culture, the concept thereof was changed. In fact, the individual has acquired the status of citizen and the philosophical discussion is now grounded on such new basis, thus ascribing to procedural law a social character. As we can see, the means of access to court protection has changed drastically from an eminently individualistic nature to a collective nature. As a result, the right of action, which is an exclusive prerogative of the holder of the primary right, is now exercised by a third party. Consequently, the right of action which is subjective and secondary - is distinguished from the subjective primary right. Such division reflects in a peculiar way, outside its scope, to the extent covered by the court protection, on the one hand, the collective good and, on the other hand, the private good of each one of the members of the community that endured the loss by virtue of a wrongful act or conduct. These are different scenarios. The third party that is thus legitimated receives legal authorization to act during the time the court collective protection maintains its collective nature, and he who has individually suffered a loss by virtue of damages with a global effect should seek repair. The individual is not the actual holder of the right of action either to his own benefit or to the benefit of the community -, but he remains the titleholder to his assets and, therefore, the collective procedural law has conferred upon him, on an exclusive basis, the prerogative of enforcing the judgment execution to the extent it applies to him as a benefit. Peculiarity leads to the need to draw our attention, as regards collective court protection, not only to the legal basis of the instrumentality of the procedural means, but, most of all, to the final objective of the proceeding, under penalty of the instrument not fulfilling its purpose, and distorting or forfeiting the right. Therefore, mere access to courts is not sufficient if it is not accompanied by the effectiveness of the rights


collective court protection tutela coletiva direito processual coletivo -- brasil tutela jurisdicional -- brasil direito do trabalho interesses difusos -- brasil

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