THE FUNDAMENTAL RIGHT OF ACTION AND SHAM LITIGATION WITHIN THE SCOPE OF CIVIL PROCEDURE

Abstract

This article examines the fundamental right of access to justice and the limits of its exercise in the face of the abusive use of the right of action. It analyzes the historical evolution of the institute, from its formal conception to the waves of renewal, which emphasized legal aid, collective protection, and procedural simplification. In Brazil, the 1988 Constitution and the 2015 Code of Civil Procedure consolidated guarantees such as free legal assistance, reasonable duration of proceedings, and mediation. However, the expansion of access also fostered abusive practices, such as procedural harassment, bad-faith litigation, and the phenomenon of sham litigation, characterized by frivolous or vexatious claims with dilatory or anticompetitive purposes. Such conduct undermines the effectiveness of jurisdiction and overburdens the judiciary. In this context, objective good faith emerges as an essential mechanism of containment, supported by the case law of the Superior Courts and by the guidelines of the National Council of Justice. It is concluded that the contemporary challenge lies in balancing broad access to justice with effective instruments to curb its misuse, thereby ensuring fair and efficient judicial relief.