A fixação por equidade de honorários sucumbenciais em causas que envolvem a fazenda pública: análise da jurisprudência dos tribunais superiores

Abstract

This monograph analyzes the arbitration of succumbence fees in cases of exorbitant amounts in which the Public Treasury is a party, in the light of the understanding of the STJ and STF. In its history, this sum has gone from a legal nature of sanction, then compensation, accompanied by the equitable (subjective) method of arbitration, to a food nature, with a staggered percentage method (objective), when there is the presence of the public entity. The change from the objective to the subjective method has accompanied a reduction in the magistrate's discretion and a change in the approach to the issue before the courts: from demeaning (mismatch between the amount of money and the work done), we are now discussing illicit enrichment and, in this case, at the expense of the public coffers. The aim is to analyze the development of the matter, which has been dealt with by the Superior Court of Justice in Repetitive Theme No. 1076, and is currently being dealt with by the Federal Supreme Court, in Direct Action for Constitutionality No. 71 and General Repercussion Theme No. 1255, using a bibliographical and jurisprudential research method, with a qualitative approach and an exploratory objective. In the end, it was concluded that the broad dilemma consists of how to balance the effective remuneration of the lawyer and the preservation of the public purse, in a case on which the position of the Federal Supreme Court is still awaited. Until then, the understanding adopted by the Superior Court of Justice should prevail, that, in the absence of declared unconstitutionality, the will of the legislator should prevail over judgments of convenience.