Igualdade e desigualdade no processo civil: o processo civil como técnica compensatória de desigualdades sociais

Abstract

This paper has in view a study on the application of equal-opportunity rules in the brazilian civil process and the consequences of inequality upon these very rules when compensatory process techniques are adopted. For the development of this analysis under the current Civil Process Law, the identification of the general theoretical bases of equality in the scope of the social sciences, Philosophy and Political Sciences was previously done, including a brief approach at the normative constitutional build-up of these institutes. Since equality is a consequence of the comparison among persons, things or situations, in the process it will necessarily be the comparison among the parts, i.e. the partial subjects of the process which should be equally treated to abide the constitutional rule of general equality (Federal Constitution, article V, caput) and to abide to the process rule (Process Code of Law, article 125, inc. I). Generally speaking, the civil process abstracts the difference among parts and grants them equal treatment abiding to the afore mentioned rules of formal equality. These general rules reflect the General Theory of Process and the majority of the institutes, But there are situations in which the civil process grants a different treatment to the parts when considering a variety of elements decurring from inequalities found in the parts or within the judicial situations being disputed by them. These differences can be classified according to the intensity in application of isolated process techniques such as judicial assistence, or compensatoruy procedures, or colective prosecutions or in compensatory organs or justices such as the special courts. This technical differentiation in the civil process, with the creation of compensatory mechanisms, constitutes a social protection means to reduce social inequity