Análise da suposta natureza jurídica indenizatória indireta dos honorários sucumbenciais

Abstract

The purpose of this study was to analyze the hypothesis of succumbencial fees having an indirect legal nature. To do so, a comparison was made between the two main systems of cost sharing in the comparative law civil suit, namely the English and US systems, which respectively represent the indemnity rule and the non-indemnity rule. After that, it was verified which rule is applied for each procedural expense of the Brazilian legal system, namely, the judicial fee, expenses with production of evidence and legal fees. In relation to the latter, it was necessary to make a comparative cut between civil proceduralist diplomas from 1973 to 2015, in order to better understand the legal regime of sucumbencial fees and their legal nature. Finally, in the first instance, the abstract application of market-free competition concepts and the threshold price for the verification of the possible indirect legal nature of the insolvency fees were considered. In a second moment, it was analyzed whether, specifically, in the economic segment of legal services, there is a market in free competition and consequent application of the concept of limit price, so that, finally, the response to the research problem was delimited.