Collusion constitutes the convergence of wills between two or more subjects, aiming to obtain an illicit result or one harmful to third parties or the integrity of judicial proceedings. Transversal to various branches of Law, such as Civil Procedure, Criminal Law, and Labor Law, the institute acts as an element of deviation from legal purpose, being sanctioned by the nullity of the acts performed and the accountability of the agents involved.
Concept and Foundation
Collusion, in legal dogmatics, is understood as the fraudulent articulation between parties or third parties to perform acts that violate objective good faith and the duty of procedural loyalty. The legal nature of the institute lies in the breach of probity, constituting an abuse of rights when used to instrumentalize the Judiciary as a means of obtaining undue advantage, often to the detriment of third-party assets or the integrity of the jurisdiction.
Unlike mere procedural strategy, collusion presupposes the animus to deceive the magistrate or to defraud execution, characterized by the simulation or dissimulation of facts. Classical doctrine identifies it as the antithesis of the principle of substantial adversarial proceedings, since the simulation of a dispute (simulated litigation) strips the process of its characteristic of a real conflict of interests.
Historical Evolution and Contextualization
Historically, collusion finds its roots in Roman Law, under the aegis of fraus, where collusion between parties to harm the res publica or the rights of creditors was condemned. In the Brazilian legal system, the concept evolved from the perception of a defect of consent to a direct violation of the principles of cooperation and procedural good faith, codified in the 2015 Code of Civil Procedure (CPC/15).
Legal Provision and Normative Framework
The Brazilian legal system addresses collusion in a dispersed but forceful manner. In the civil procedural scope, Art. 142 of the CPC/15 establishes that the judge must prevent or repress any act contrary to the dignity of justice, while Art. 80, items II and III, qualifies as bad-faith litigation the procedure of altering the truth of facts and using the process to achieve an illegal objective.
In Criminal Law, collusion is a constituent element of types such as criminal association (Art. 288 of the Penal Code) and, specifically, fraud against execution (Art. 179 of the Penal Code), where the agent alienates, diverts, or destroys assets to frustrate the payment of a recognized debt. In Labor Law, collusion is severely repressed, being a cause for absolute nullity of judicially ratified agreements when simulated litigation is configured, pursuant to Art. 765 of the CLT, which grants the judge broad freedom in directing the process to avoid fraud.
Practical Application and Jurisprudence
The jurisprudence of the Superior Courts has consolidated the understanding that collusion attracts the nullity of procedural acts. The Superior Court of Justice (STJ), in several rulings on fraud against execution, reinforces that the alienation of assets after the filing of the lawsuit, resulting from collusion between the debtor and the third-party acquirer, renders the legal transaction ineffective against the creditor (Precedents: REsp 1,280,534/SP).
Within the scope of the Superior Labor Court (TST), Súmula 31 and the understanding consolidated via Jurisprudential Guidance indicate that the simulation of an employment relationship with the objective of obtaining severance pay or other benefits constitutes collusion, subjecting the parties to fines for bad-faith litigation and the investigation of the crime of judicial fraud.
Related Principles and Doctrinal Divergences
Collusion directly conflicts with the Principle of Objective Good Faith (Art. 5 of the CPC/15) and the Principle of Procedural Loyalty. The doctrinal divergence lies, specifically, in the distinction between aggressive procedural strategy and collusion itself. While the former is a lawful exercise of the right of defense, the latter exceeds the limits of the regular exercise of rights, entering the sphere of sanctionable illegality. Contemporary doctrine, from the perspective of neo-proceduralism, tends to expand the magistrate's investigative powers to identify collusion, even if not argued by the parties, given the public order nature of protecting the fairness of the process.
Contemporary Relevance
Contemporary times impose additional challenges, especially in the era of process digitalization, where collusion can be operationalized via forged electronic documents. The relevance of the institute is paramount in defending the integrity of the justice system, acting as a safeguard mechanism against the predatory instrumentalization of the Judiciary. The repression of collusion is, therefore, an imperative for maintaining legal certainty and trust in democratic institutions.
Legal and Jurisprudential References
- Brazil. Law No. 13,105, of March 16, 2015. Code of Civil Procedure. Articles 80, 142, and 774.
- Brazil. Decree-Law No. 2,848, of December 7, 1940. Penal Code. Article 179 (Fraud against execution).
- Brazil. Decree-Law No. 5,452, of May 1, 1943. Consolidation of Labor Laws. Article 765.
- STJ. Special Appeal No. 1,280,534/SP. Rapporteur: Justice Luis Felipe Salomão. Third Panel. Adjudicated in 2014 (understanding maintained regarding fraud against execution).
- TST. Súmula No. 31: "The simulation of an employment relationship entails the nullity of the act and condemnation to the penalties of bad-faith litigation."
