Litigância de má-fé e eficiência no processo civil: um ensaio sob a perspectiva da análise econômica do direito.

Abstract

Current is the finding that the Judiciary is going through a time of crisis and there was a considerable increase in demands and, thereafter, the slow progress of cases, which aggravated this situation. In this context, is necessary analyze these demands qualitatively, the litigants behavior, during the judicial phase, and also the way the procedure legislation can influence the litigators' acts. This paper wants to investigate the influence of the cooperation between the litigants has in the procedural effectiveness and measure the efficiency of the sanctions imposed on acts contrary to good faith practiced by the litigants. Therefore, uses the Law and Economics and elements of the economic theory to interpret empirical data and study legal precedents about the theme. This work is divided into three parts. Initially makes a contextualization of the Law and Economics approach, presentation of the constitutional and procedural nuances of the access of justice and the right of action, with exhibition of data about judicial slow and litigation in Brazil. Then, exposes the legal rules and jurisprudential facets about litigation in bad faith, differs from right abuse. After, correlates the process of decision of the litigants based on Game Theory, uses the Law and Economics modeling for guide the application of efficient sanctions for avoid acts contrary to good faith. At end, presents the conclusions about the economics aspects of the theme that can help to understand the legal system’s fails, like its inefficiency and orient the judges in their actuation, seeking to give more effectiveness to existing legal rules, offering the rights incentives to the parties and making disadvantageous bad faith acts in a judicial dispute.