Instituições financeiras enquanto litigantes habituais: uma análise crítica sobre suas vantagens competitivas no atual cenário de grande litigiosidade bancária

Abstract

Financial institutions are the main repeat players in the private sphere of the Brazilian Judiciary. Thus, the present research seeks to identify the causes and effects produced by the competitive advantages of financial institutions as repeat players, with the purpose of verifying whether such advantages can be considered as obstacles to the realization of the fundamental right of access to justice for consumers of banking services. For this purpose, Marc Galanter’s theory on the typology of parts, exposed in the first chapter, is used. In the development of the text, we seek to provide answers to two research problems, which were formulated as follows: What competitive advantages are obtained by financial institutions, as a result of the condition of repeat players that they occupy in the Brazilian Judiciary? Among the competitive advantages obtained, which ones should be considered violating the fundamental right of access to justice of consumers of banking services? Data from the National Council of Justice and other research reveal the considerable participation of these institutions in the growing litigation in our country, numbers that will be presented in the second chapter. Through Karl Popper’s hypothetical-deductive method, it is verified that, despite the competitive advantages that such repeat players have to the detriment of eventual litigants (one-shooter), they, by themselves, do not represent a violation of the rights of clients and users of banking services in consumer and contracts disputes, as carried out in the third chapter. In the fourth chapter, proposals to reduce high bank litigation are presented. The movement of dejudicialization of civil execution proves to be a very viable proposal. Likewise, including mediation in financial institutions, perhaps incorporated in the banks´ Ombudsman, also proves to be very interesting.