O poder geral de efetivação do juiz na tutela coletiva

Abstract

This dissertation examines the general power of enforcement vested in the judge as a procedural technique aimed at ensuring the practical effectiveness of judicial decisions, with specific focus on the context of collective litigation, in which the distance between the recognition of rights and their concrete implementation tends to be structurally greater. The study is organized into three main parts. First, it presents a historical overview of the formation of judicial powers, contrasting the liberal tradition—characterized by limitations on judicial intervention—with the progressive centrality of the judge within the publicist model and the contemporary redefinition of procedural effectiveness. These elements are articulated with the system of general judicial powers and duties established by the Code of Civil Procedure of 2015 and with the role of general clauses. Subsequently, the dissertation reconstructs the general power of enforcement, delimiting its constitutional and normative foundations and examining the structure of Article 139, item IV, of the Code of Civil Procedure, with particular attention to its constitutional limits—legality, proportionality, adversarial proceedings, and the duty to give reasons—as criteria for controlling judicial activity. Finally, the analysis shifts to the specific features of collective proceedings, mapping typical obstacles—such as the diversity of protected rights, the indeterminacy of right-holders, jurisdiction, standing, res judicata, appeals, liquidation, and enforcement of judgments—and discussing the insufficiency of traditional procedural instruments. On this basis, the study systematizes hypotheses for the application of Article 139, item IV, in collective litigation, with emphasis on provisional relief, injunctive relief and removal of unlawful conduct, the expansion of duties of publicity and information, and direct judicial intervention in the enforcement of collective judgments. The dissertation contributes to a more precise understanding of the judge’s general power of enforcement, highlighting its role in addressing the structural obstacles to the effectiveness of collective judicial protection, while preserving the principles of proportionality, adversarial proceedings, due process of law, and the duty to give reasons for judicial decisions