Gratuidade de justiça e litigância abusiva: a (Im)prescindibilidade da comprovação da hipossuficiência econômica

Abstract

This article aims to critically analyze the legal institute of free legal aid within the Brazilian legal system, focusing on the controversy surrounding the (in)dispensability of proving financial insufficiency for its granting. It seeks to highlight the consequences arising from the lack of objective criteria in the assessment of such requests, a circumstance that enables the filing of frivolous litigation. From this perspective, based on an examination of the intrinsic relationship between the indiscriminate granting of free legal aid and abusive litigation, this study demonstrates the impacts generated on the Judiciary, especially with regard to the hyper-judicialization of disputes and the financial burdens borne by the public treasury. The research is grounded in recent empirical data published by the National Council of Justice (CNJ), particularly from the Justice in Numbers reports, which reveal the volume of lawsuits and the rate of free legal aid concessions. Furthermore, it provides a critical analysis of the recent thesis established by the Superior Court of Justice (STJ) in the judgment of Theme No. 1,178, comparing and contrasting it with Bill No. 2,239/2022, currently under consideration in the National Congress, as well as with the position of Justice Gilmar Mendes at the Federal Supreme Court (STF) in labor matters, whose effects extend to the civil sphere. Finally, the study examines the legal distinctions in granting free legal aid to natural people and legal entities, with particular emphasis on the rules applicable to individual microentrepreneurs and sole proprietors.