CODE OF CIVIL PROCEDURE IN BRAZIL
This article will provide guidance on the Code of Civil Procedure in Brazil. Brazilian civil process is governed by the provisions of the Civil Procedure Law (Código de Processo Civil), which was ratified in March 2015 and has been in effect in Brazil since March 2016, replacing the previous code from 1973. The civil law system draws substantially on Roman and German ideas of civil process. Cases involving private law, social law, and public law are all heard in accordance with the rules of civil process in Brazil.
The four stages of the ordinary process are the pleading phase (fase postulatória), the conclusive opening order (despacho saneador), the evidential phase (fase probatória), and the decision-making phase.
To initiate a civil case, a plaintiff must file a complaint, often known as a "first petition" (petiço initial). Plaintiff and defendant must be identified, as well as the judge or court to whom the original petition is submitted. Thus, the petition is traditionally broken down into three sections; [A.] the statement of facts (a recounting of the events that prompted the petition), [B.] considerations of law (a compilation of legislation and legal authorities supporting the plaintiff's viewpoint), and [C.] a request for relief (where the plaintiff specifies the desired legal action to be taken by the court). This includes all relevant papers and a detailed explanation of the plaintiff's plans to substantiate their claims in the first petition. The judge is then presented with the petition and may decide to reject it (with the option to appeal), request changes, or accept it. The defendant must file a response or risk default within fifteen days of acceptance.
As a response to the plaintiff's first petition, the defense may file either a traditional answer (contestaço), a counterclaim (recovenço), or an exception (excepço). To counter the claims made in the petition, the defendant will file a "contestaço," comprising counterclaims, rebuttals, and rebuttal evidence. Some legal positions are waived if they are not asserted. A counterclaim, in which the defendant makes his claim against the plaintiff, must be related to the original issue or emerge as a defense to the complaint.
EVIDENCE GATHERING IN BRAZIL
When the judge has finished reviewing the petition and the response, they will meet with the parties to narrow the case down to the core points. After reviewing the evidence, they may move for a summary judgment in lieu of a trial if they determine that there are no material facts in question and the only point of disagreement is a legal one. If not, the final starting order establishes what questions will be presented before the court and confirms that the point of contention is meritorious of a response based on the case's merits.
Evidence is submitted to the judge at this stage to help him make a judgment. The gathering of evidence takes time, often many months. In addition to the plaintiff and the defendant, the judge will also hear oral testimony from any other parties involved. Before the questioning session, the judge will receive a list of questions from both parties in the dispute and ask them on their behalf. After the witness has finished testifying, the opposing party may use "cross-examination" questions to elicit more information.
After the presentation of evidence, the case proceeds to trial (audiência). The trial's primary goal is to give the parties one more shot at reaching an agreement. If the parties cannot settle the case out of court, the trial will continue until the judge issues a ruling based on the evidence presented. Although the judge has wide latitude in weighing the evidence, they must make their decision in accordance with the common rules of experience, the written law of the land, and knowledge of previous decisions (a trend that is approaching Brazilian civil procedure law to English Common Law), and they must do so in a formal sentence that is published in government-kept diaries (diários oficiais), which are analogous to newspapers. Judgment is meant to be rendered within ten days after the conclusion of the trial; however, owing to the high volume of civil cases tried in Brazil, this time frame is routinely extended.
CHANGES MADE TO THE CPC
Many changes have been made to the 1973 C.P.C. to keep it current. A new Constitution (Constituiço Federal, C.F.) was enacted in 1988, among other legislation that impacted the C.P.C., making it difficult to reconcile the disparities between the previous C.P.C. and the new legal and constitutional order.
The new C.P.C. mandates, under Article 12, with a few exceptions (art. 12(2)), that cases be decided in the order in which they were filed. In addition, the court's registrar's office (cartório) and the Internet must always provide an up-to-date list of pending cases (processos) for public review.
A conciliation or mediation hearing at the beginning of the trial phase of a case is now mandatory under the new C.P.C., provided that the initial request (petiço inicial) filed with the court satisfies all the essential requirements and a pleading is submitted. This is in accordance with the arrangements established in the law (Juizados Especiales Cveis e Criminais, Lei No. 9.099, de 26 de Se (art. 334).
Under the C.P.C. of 1973, calendar days were included in the computation of the number of days defined by legislation or by the court for procedural times. However, beginning with article 219, only business days will be included. The time limit for filing and responding to an appeal has also been 15 days (art. 1003(5)), except for embargos de declaraço.
According to Article 926 of the new C.P.C., the higher courts (tribunais) are legally obligated to maintain a consistent, uniform, and reasonable body of case law. In addition, the judgments of the Federal Supreme Court (Supremo Tribunal Federal, STF) on constitutionality and those decisions judged to be binding (smulas vinculantes ("binding decisions")) must be followed by lower courts and tribunals as mandated by article 927.
The new C.P.C. also mandates that lower courts must adhere to the rulings made by the Supreme Court (Superior Tribunal de Justiça, STJ) on infra-constitutional issues. The Constitution of 1988 established the STJ (C.F. art. 92(II)) to ensure uniformity in the application of federal law in Brazil. It has the last say on Brazil's civil and criminal matters without directly affecting the Constitution.
Article 489 of the C.P.C. lays out the components of a legal judgment (sentença) and its repercussions and requires the judge to clarify, in each legal decision, the connection between the law and the case or subject at hand.
This modification mandates that judges not only follow precedents in making a decision but also examine the relevance of the precedent to the issue at hand.
b. Satisfaction of Continual Requests
In light of article 976 of the new C.P.C., several cases involving the same legal problem may be decided concurrently by appellate courts. Each is necessary to kick off the Incident of Resolving Repetitive Demands (Incidente de Resoluço de Demandas Repetitivas).
First, the potential damage to equity and legal clarity when lawsuits (processos) rehashing the same argument over the same legal problem are effectively repeated.
The method requires a request to be submitted to the president of the appellate court (tribunal)
The judge (juiz ou relator) on an official letter (ofcio); the parties (participantes) on a petition; the public prosecutor's office (Ministério Pblico) or public defender's office (Defensoria Pblica) on a petition. (Article 977, Penal Code)
The body designated in the appellate court's bylaws as being in charge of standardising the court's jurisprudence is responsible for conducting the analysis and deciding to commence the process (art. 978). If another superior court is now reviewing the same factual or legal question within its jurisdiction, then that court's decision will stand (art. 976(4)).
Repetition of cases has been noted as a pressing issue in the Brazilian legal system. The idea is that if a legal problem can be addressed once, that solution may be used in all future instances involving the same issue, saving everyone time and effort. This innovation and precedent are supposed to make the Brazilian judicial system more flexible.
The easiest approach to gain time and postpone the ultimate judgment on a case was to submit as many appeals as legally feasible in the past or until 2016, when the new C.P.C. would go into effect. The new C.P.C. is designed to penalize the appellant further and compensate the appellee financially if this technique is used. Losers' motivation to delay filing appeals in the face of the threat of penalties is projected to decrease.
Although Brazilian law does not adhere to stare decisis, the STF has begun making binding judgments (Smulas Vinculantes) in exceptional cases since a constitutional amendment was passed in 2004 (Emenda Constitucional No. 45, de 30 de Dezembro de 2004). (C.F. art. 103-A). Because of these rulings, the judicial system may finally and definitively settle hundreds of lawsuits on the same problem.
The STF may, ex officio or upon demand, approve by a decision of two-thirds of its members a decision (smula) that, upon publication in the official press, has binding effects on the other organs of the judiciary and the direct and indirect administrations of the federal, state, and municipal governments. Decisions made by the STF are legally binding until otherwise changed or revoked by the STF in accordance with applicable legislation.
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1. As of the 16th of March, 2015, a new Code of Civil Procedure (Código de Processo Civil (C.P.C. ), Lei No. 13.105, de 16 de Março de 2015) was enacted by the Brazilian government with the approval of President Dilma Rousseff.
The new C.P.C. went into effect on March 17, 2016, exactly one year after it was published in the Diário Oficial do Unio (id. art. 1,045). After that, the new C.P.C. will replace the existing C.P.C., which has been in effect since January 11, 1973 (Código de Processo Civil, Lei No. 5.869, de 11 de Janeiro de 1973).
A one-year grace period is required before it may go into effect to provide the judicial system, legal experts, and the general public enough time to adjust to the new Criminal Procedure Code.
2. One such exception is an argument that seeks to dismiss the case before a decision on the merits has been reached (such as lack of jurisdiction).
3. Since the C.P.C.'s creation in 1973, 64 laws have been passed that update the Code in some manner, including an Act of the president of the Federal Senate (Ato do Presidente No. 379, de 2009) creating a committee of legal academics to create a new C.P.C. More importantly, the legal mechanisms for protecting basic rights had not undergone the same conceptual development in 1973 as they have since. The organization and function of the Judicial Branch have undergone dramatic changes since then. In addition, the constitutional provisions of both access to justice and a fair time of procedure have attained basic protections.
4. To further the goals of the new C.P.C., Brazil has recently updated its Arbitration Law (Lei No. 9.307, de 23 de Setembro de 1996, as revised by Lei No. 13.129, de 26 de Maio 2015) and passed a new Mediation Law (Lei No. 13.140, de 26 de Junho de 2015). These two new laws were passed expecting to lower the total number of cases filed before the courts and, therefore, the need for formal justice. The Global Legal Monitor has published two pieces on these new laws: the new Arbitration Law and the new Mediation Law.
5. As Brazil's highest court, the STF is charged with upholding the Constitution and conducting judicial reviews (C.F. art. 102(III)).
6. It seems precedent will play a central role in deciding legal disputes under this explicit approach. In 2004, when Amendment No. 45 to the Constitution gave the Federal Supreme Court the authority to make judgments with mandatory legal force, this procedure was first used.
7. In addition, a judge will consider the following while rendering a ruling:
- Must address all points raised throughout the proceeding that might, in principle, contradict the judgment reached by the court; cannot use uncertain legal terms without explaining the true rationale for their occurrence in the case.
- cannot rely solely on precedents without explaining how the current case differs from the one in the precedent or showing that the precedent applies to the current case;
- cannot refuse to apply a precedent (enunciado de smula ou jurisprudência), or a precedent invoked by a party, without explaining how the current case differs from the precedent or showing that the precedent has been overturned.
8. If a collective body decides that an appeal (agravo de instrumento) is without merit, the appellant must pay the appellee a fine of between 1% and 5% of the current value of the claim (art. 1.024(4)).
The judge of the appellate court must sentence the appellant to pay the appellee a fine not exceeding two percent of the revised amount of the claim (art. 1.026(2)) where an appeal (embargos de declaraço) is dilatory.
The filing of any appeal must be subject to the prior deposit of the imposed fine, except for the Treasury (Fazenda Pblica) and the beneficiary of gratuitous justice, which must be collected at the end of the case (art. 1.026(3)), and in the event of a reiteration of an appeal (embargos de declaraço) manifestly dilatory; the fine will be increased to up to 10 percent of the updated amount of the claim.
9. Law No. 11.417 of December 19, 2006, governs the issuing, amendment, and cancellation of Smulas Vinculantes.
10. The goal of a final decision is to settle disputes over the law's validity, interpretation, and applicability when there is actual controversy among courts or between courts and the government, leading to significant legal uncertainty and an increase in cases involving the same issues (C.F. art. 103-A(1)).
It is the right of any person with standing to initiate a direct action asserting unconstitutionality (C.F. art. 103-A(2)) to seek judicial approval, modification, or revocation of a final judgment, regardless of what the legislation may stipulate.