Litisconsortium is a fundamental institute of Civil and Labor Procedural Law, characterized by the plurality of subjects on one or both sides of the procedural relationship. Its primary purpose lies in procedural economy, celerity, and the pursuit of uniformity in judicial decisions, avoiding the risk of contradictory rulings in situations involving a community of rights or obligations.
Concept and Foundation
Litisconsortium is configured as a modality of subjective plurality in a lawsuit, in which two or more persons occupy the position of plaintiffs (active litisconsortium), defendants (passive litisconsortium), or both (mixed litisconsortium). The legal nature of the institute is that of a complex procedural relationship which, while maintaining the unity of the process, is subdivided into multiple legal relationships between the subjects involved.
From a doctrinal point of view, litisconsortium does not alter the nature of the dispute, but modifies the structure of the procedure, allowing the State-Judge to resolve in a single jurisdictional provision issues that, under other circumstances, would require multiple lawsuits, preserving the principle of procedural economy and legal certainty.
Historical Origin and Evolution
Historically, litisconsortium finds its roots in Roman Law, under the aegis of litis consortio, evolving significantly through Germanic and French Civil Procedural Law. In the Brazilian scenario, the institute was consolidated as a mechanism for rationalizing the judiciary system, shifting from an individualistic view of the process to a collectivized perspective, especially after the enactment of the 1973 Code of Civil Procedure and, subsequently, with the deepening of the guidelines brought by the 2015 Code of Civil Procedure (CPC/15).
Classification and Legal Provision
The CPC/15 regulates litisconsortium in articles 113 to 118. The doctrinal and legal classification is essential for understanding its effects:
- Regarding the timing: Initial (occurs at the filing of the lawsuit) or subsequent (occurs during the course of the process, through third-party intervention or succession).
- Regarding mandatory nature: Optional (arises from the will of the parties, according to art. 113) or necessary (imposed by law or by the nature of the legal relationship, according to art. 114).
- Regarding the effectiveness of the decision: Simple (decisions may be distinct for the litisconsortes) or Unitary (the decision must be mandatorily uniform for all, according to art. 116).
Practical Application and Jurisprudence
Contemporary jurisprudence, led by the Superior Court of Justice (STJ), reinforces the distinction between necessary and unitary litisconsortium. The STJ has a consolidated understanding that the absence of summons of a necessary litisconsorte entails the nullity of the process, as it is a matter of public order (trans-rescissory defect). In the context of Public Civil Actions, litisconsortium is frequently used to ensure the effectiveness of decisions that protect trans-individual rights.
Within the scope of Labor Law, the TST applies the institute with adjustments, considering the alimentary nature of the funds and procedural celerity, with the formation of passive litisconsortium being common in cases of joint or subsidiary liability of companies belonging to an economic group.
Related Principles and Doctrinal Divergences
One of the most debated points lies in article 117 of the CPC/15, which enshrines the principle of the autonomy of the litisconsortes. Although the acts of one do not prejudice the others, beneficial acts benefit everyone. The doctrinal divergence is anchored in the extent of the effectiveness of default and the counting of deadlines. Article 229 of the CPC/15 establishes that litisconsortes with different attorneys have double the time for manifestations, except in electronic files, according to the updated understanding of the superior courts aiming at procedural efficiency.
Contemporary Relevance
Currently, litisconsortium is an instrument to combat the proliferation of repetitive lawsuits. The possibility of joining lawsuits due to connection or continence (art. 55 of the CPC/15) is, ultimately, a form of subsequent litisconsortium, fundamental for maintaining the coherence of the system of binding precedents in Brazilian Law.
Legal and Jurisprudential References
- Brazil. Law No. 13,105, of March 16, 2015. Code of Civil Procedure. Articles 113 to 118; Article 229.
- STJ, REsp 1,631,859/SP: Understanding regarding the nature of necessary litisconsortium in possessory actions.
- TST, RR-1000788-75.2016.5.02.0000: Application of litisconsortium in subsidiary liability.
- DINAMARCO, Cândido Rangel. Instituições de Direito Processual Civil. Vol. II. Malheiros Editores.
- MARINONI, Luiz Guilherme; ARENHART, Sérgio Cruz. Curso de Processo Civil. Revista dos Tribunais.
