Legitimidade ativa na efetivação da tutela coletiva por meio da ação civil pública: enfoque a partir de uma análise sistemática

Abstract

The present dissertation discusses the topic of active legitimacy for the proposition of public civil action when such seeks the tutelage of diffuse, collective in the strict sense and individual homogeneous rights. A constitutional view considering more specifically collective jurisdictional tutelage is the starting point for the fundamental right that is expressly supported by the Federal Constitution of 1988. A preliminary study is conducted regarding legitimacy, by inserting it within the category of general theory of law to later study some classifications found in the civil procedural doctrine, thereby separating the legitimacy that integrates the category of the conditions of the action of that that is inherent to the procedural pressupositions. Besides the constitutional provisions that acknowledge active legitimacy for some people, the infra-constitutional laws that set the provisions of specific fields of material law are studied and that, in similar fashion, present distinct lists of persons actively legitimated to the proposition of public civil action, thereby revealing the repercussion of material right in procedural rules and therefore making the examination of eventual contradictions of laws among the various legal norms necessary. Thus, the collective procedural system, its various subsystems and the concept of collective action are examined, later ingressing in the analysis of the legal nature ad causam of active legitimacy. Finally, some situations relative to illegal restrictions to the exercise of public civil action, and therefore, inconstitutional limitations to the access to justice are examined, as well as some issues involving judicial control of legitimacy of the plaintiff of the public civil action under Brazilian law