A facultatividade no litisconsórcio unitário ativo

Abstract

The optional unitary joinder has long been prescribed by law in the Brazilian legal system and in some foreign legislations, as in clauses 488, 623 and 1580 of our repealed Civil Code as of 1916. Not so remote, however, are the specific and consecrated doctrinal studies about the topic, as in Antônio Carlos de Araujo Cintra s PhD thesis (The Joinder) and José Carlos Barbosa Moreira s literary composition (Unitary joinder). And even more recent, yet, are the scientific demonstrations examining the importance of the participation in the lawsuit of every joint holder of the material right discussed in court. Formerly, this well-founded concern founded, because, after all, everyone is inevitably hit by res judicata was highlighted by one or two Brazilian and foreign indoctrinator. This thesis proves to be obligatory the participation, as defendant of the procedural legal relationship, of the joint holders of the indivisible material right that does not figure as plaintiffs, even if legal statement pre-exists predicting, the plaintiff, the optional joinder. Such conclusion derives from the understanding of not occurring, in this case, genuine procedural substitution, in which the joinder of defendants is necessary and circumstance of lapsing from the Federal Constitution, especially from the adversarial principle, the indispensable integration into the lawsuit of the joint holders of the material right. It is not simply about applying to the Brazilian law the iussu iudicis intervention prescribed by the Italian law or making the voluntary joinder necessary, but understanding that the joinder is, primarily, necessary. Lastly, with an excessive amount of necessary codefendants, may the judge order the citation by publication of all, by strength of principles of the judicial adequacy and reasonable length of the lawsuit