Lis pendens is a fundamental concept in Civil Procedural Law, characterized by the existence of two or more identical lawsuits currently in progress. Its primary purpose is to preserve legal certainty, procedural economy, and the prevention of contradictory decisions, prohibiting jurisdictional bis in idem.
Concept and Foundation
Lis pendens (from the Latin lis, dispute, and pendere, pending) occurs when a previously filed action is reproduced. Under the terms of Art. 337, §§ 1, 2, and 3 of the Civil Procedure Code (CPC/2015), lis pendens occurs when a new action is filed that is identical to one already in progress—that is, when they share the same parties, the same cause of action, and the same request.
The legal nature of lis pendens is that of a negative procedural prerequisite. It is a matter of public order, which can be recognized ex officio by the magistrate at any time and degree of jurisdiction, provided that res judicata has not yet been established. Its dogmatic function is to prevent the Judiciary from being called upon to decide on the same object more than once, avoiding the unnecessary expenditure of state resources and the issuance of conflicting judgments.
Historical Origin and Evolution
The institute dates back to Roman Law, under the concept of litis pendentia, which established the effect of stabilizing the dispute. From the moment the litis contestatio occurred, the procedural relationship became definitive, preventing the modification of the object or the filing of a new action regarding the same claim. In the Brazilian legal system, the institute was consolidated as a mechanism for rationalizing the process, evolving from the 1939 Code to the 1973 CPC and, finally, to the current 2015 statute, which refined the criteria for identifying actions.
Practical Application and Jurisprudential Understanding
The jurisprudence of the Superior Courts, notably the Superior Court of Justice (STJ), has consolidated the understanding that verifying lis pendens requires a triple identity: same parties, same cause of action, and same request. However, the STJ has mitigated this restrictive interpretation in cases of collective and individual actions, applying the principle of consumer protection or the prevalence of collective action to avoid prejudice to the plaintiff.
Recently, the STJ has addressed the debate regarding lis pendens between collective and individual actions. The prevailing understanding (Theme 823/STJ) establishes that a collective action does not induce lis pendens for an individual action, unless the plaintiff of the individual action requests the suspension of the collective process, ensuring the litigant's option for the procedure that best serves their interests.
Related Principles and Doctrinal Divergences
Lis pendens is directly related to the principle of ne bis in idem and the guarantee of legal certainty. Doctrinal divergences persist regarding the scope of the "cause of action." While part of classical doctrine defends a strict interpretation of facts and legal grounds, modern doctrine, influenced by the theory of substantiation, tends to consider lis pendens when there is an identity of claims, even with different legal grounds, provided that the core of the dispute remains unchanged.
Contemporary Relevance and Impacts
In the current scenario, lis pendens is an indispensable tool for procedural management in the face of the phenomenon of predatory litigation. The automation of court distribution systems allows for the immediate identification of repetitive lawsuits. The dismissal of the case without resolution of the merits, based on Art. 485, V, of the CPC, is the procedural sanction applied when lis pendens is configured, preserving the integrity of the judicial system.
Legal and Jurisprudential References
- Civil Procedure Code (Law 13.105/2015): Art. 337, §§ 1 to 3 (Definition); Art. 485, V (Dismissal of the case without resolution of the merits).
- Superior Court of Justice: REsp 1.110.549/RS (Theme 823 - Lis pendens between collective and individual action).
- Federal Constitution: Art. 5, XXXV (Principle of access to justice, interpreted harmoniously with the prohibition of lis pendens for the purposes of procedural efficiency).
- Doctrine: Marinoni, L. G.; Arenhart, S. C.; Mitidiero, D. "Novo Curso de Processo Civil". Ed. RT.
