Bill of Review and Infringing Embargoes in Brazilian Civil Procedure

Posted on Oct 28, 2024 in Law & Jurisprudence

Bill of Review and Infringing Embargoes

Article 557: Rapporteur’s Role

The rapporteur will deny the action as manifestly inadmissible if it is rejected, damaged, or in conflict with case-law precedent or a ruling of the respective court, the Supreme Court, or the High Court.

§ 1-A If the contested decision is in obvious conflict with a summary or case ruling of the Supreme Court or Superior Court, the rapporteur may allow the appeal.

§ 1 Within five days, the body responsible for the trial of the action will review the wrong decision. If there is no retraction, the rapporteur will present the process to the table, uttering a vote. Provided the offense, the action will follow.

§ 2 When the injury is inadmissible or manifestly unfounded, the court will sentence the aggravating party to pay a fine between one and ten percent of the corrected cause, getting the interposition of any other asset subject to deposit of its value.

Other Rapporteur Actions

  • b) Convert the Bill of Complaint into Withholding, unless the assumptions are verified as those that allow the filing of AI (527, II);
  • c) III – May assign suspending implementation (Article 558), or defer, in anticipation of trust, in whole or in part, the appellate claim, informing the judge’s decision;
  • d) IV – May request information from the judge, who will provide it within ten days;
  • e) V – Have them order the worse, on that occasion, in a letter addressed to her lawyer on record and return receipt requested, to respond within ten days (art. 525, § 2), providing you join the documentation it deems appropriate. In counties where the tribunal and real-time forensics are disclosed in the official gazette, the order will be by publication in the official Section 528.

Not later than 30 days from the order of aggravated, the rapporteur will request the day of trial (Article 528).

If the judge retired to fully communicate the decision, the rapporteur will consider that Bill (Article 529).

Any decision to deny the appeal following a special nature is attacked by a bill of review. In this case, the AI will exceptionally be referred to the court ‘a quo’.

2.6.3 – Bill of Review Against Denial Following RESP or RE

  • RESP (STJ) and RE (STF) before the Court of origin;
  • Addressed, as a rule, to the president or one of the vice-presidents as per the Bylaws;
  • Unic the rendering with the examination of admissibility requirements by the Court President, after the submission of counter-arguments;
  • UDA decision to admit; there is no appeal (eligibility will be re-made by the judging committee) should the case be referred to the court or the Supreme Court for a new trial to examine admissibility and merits.

If the court’s decision a quo denies it (up to denying Resp or RE), it is AI within ten days from the date of summoning the parties to the STJ or STF (Art. 544).

Article 544: Bill of Review

If an extraordinary or special feature is not allowed, it will be a bill of review, within ten days to the Supreme Court or the Superior Court of Justice, as appropriate.

Peculiarities Distinguishing it from Traditional AI

  • Brought before the court a quo and for the presidency of the Court of origin: it is brought before the court ad quem;
  • This measure makes the procedure more practical, avoiding the lawyer having to travel to Brasilia to bring it;
  • b) Must be accompanied by compulsory pieces much more numerous than in the common Aggravation (544, § 1). These are copies of:
    • a. The decision under appeal (which allowed the RESP), the certificate of their summons, the notice of the appeal denied, the counter-arguments;
    • b. The aggravated decision, the certificate of summons, and the power of attorney granted to the attorneys of the aggravating and aggravated parties;
    • c. A declaration of authenticity of the copies made by the attorney under penalty of personal responsibility;
  • The absence of any copies does not imply knowledge of the application;
  • c) Although the court of origin will be notified to worsen within ten days, providing the answers and instructing it with pieces as it deems appropriate;
  • d) If the injury is admitted, it will be referred to the Supreme Court or the court in the form of RI.
  • e) CPC 544, § 2 exempts the aggravating party from paying any fees, including postage: § 2 The petition of grievance will be sent to the president of the court of origin, without payment of costs and postage. The worse will be notified immediately to provide answers within ten days and can instruct it with copies of the parts it deems appropriate. Then, the injury will go to the superior court, which will be processed according to the regulations.
  • f) CPC 544, § 3, the same rules apply to RESP and RE.
  • g) The Rapporteur (Minister) alone cannot allow the AI, dismiss it, or reform the judgment. Against this decision rests a Complaint Procedure (Rules of Procedure) to the competent body to judge the appeal in five days.

If the ruling under appeal conflicts with the precedent or case ruling of the Supreme Court, the Rapporteur may hear the grievance to uphold the special appeal. If the instrument contains the information necessary for trial on the merits, they may determine its conversion, observing the procedure for the particular resource (e.g., the question scoresheet is under appeal. The rapporteur will not lose time and will effect the ruling on the merits of the RESP. – Rule extended to RE) (§ 3).

The preceding paragraph shall also apply to the bill of review against the denial of an extraordinary appeal, unless the same question has a special appeal admitted and should be tried first (§ 4).

3 – Infringing Embargoes

3.1 – Applicability:

CPC, Article 530 (Law 10.352/01 – Amendment required and the processing of EI) – Contra Case agreed that there is no fixed degree of appeal, the award of merit, or has upheld the STJ.

  • Conditioned by the subject matter of the dispute.
  • Only what was the object of dissent is to be discussed.
  • Not enough that the ruling on appeal or STJ is not unanimous.
Apelação:
  • It is necessary that the ruling, by a majority, has reformed the sentence of merit.
  • It is not whether the ruling, by a majority, maintained or set aside the sentence.

Diminished sense reversal: Only fit, for most, if the trial is of origin, as well as modifying the contents of the decision.

Article 485: Res Judicata

The ruling on the merits, res judicata, may be terminated if:

  1. Given for malfeasance, graft, or corruption of the Judge.
  2. Issued by a prevented or absolutely incompetent judge.
  3. The result of willful misconduct of the prevailing party at the expense of the losing party or collusion between the parties to circumvent the law.
  4. Offending res judicata.
  5. Literally violating a provision of law.
  6. Based on evidence whose forgery has been established in a criminal case or proven in the STJ.
  7. After the verdict, the author obtains a new document, whose existence was unknown or could not be used, capable, by itself, to ensure a favorable statement.
  8. No basis for invalidating confession withdrawal or transaction in which the sentence was based.
  9. Founded on a mistake of fact resulting from acts or documents of the case.

§ 1 There is an error when the decision admits a non-existent fact or considers a non-existent fact as having occurred.

§ 2 It is essential, in both cases, that there has been no controversy or judicial pronouncement on the fact.

Purpose:

  • Honoring the decision of 1st instance. Only if there is any change in the ruling will the embargo be reasonable.
  • For infringing embargoes to be reasonable, we must:
    • a) There is not a unanimous ruling handed down at trial or appeal the rescission action.
    • b) The ruling has reformed the trial and upheld the rescission action.
    • c) The sentence is reformed to mérito.

3.2 – Processing (Treated in RI)

  • Opposites within 15 days after the subpoena of the non-unanimous ruling.
  • CPC, Article 498 – When the device contains a trial ruling by a trial and unanimous vote, has filed, and are infringing, the time for appeal or extraordinary resource, for the unanimous trial, will be discontinued until the notification of the decision on the embargo.

While infringing embargoes are not filed, the deadline for the unanimous decision will be the opening day of the year in which the majority vote decision was handed down.

While infringing embargoes fit, only they are subject. The deadline for Resp or RE does not begin to run.

  • If EI is opposed, only with the notification of the decision of embargoes will the period for bringing the RE or Resp begin.
  • If not opposed, the running of time for lodging appeals to higher courts begins on the 16th day from that subpoena of the non-unanimous ruling, automatically and without further orders.
  • The post feature opens first for the embargoed party to submit a reply.
  • Submission of the case to the draftsman of the embargoed judgment – judgment of admissibility.
  • Arrangements – CPC, Article 557, Caput and § 1.
  • The processing of EI is regulated by the internal regulations of the courts.
  • As a rule, do not collect preparo.

3.3 Effects

3.3.1 – Suspension

Is the rule: prevents the contested from being effective immediately. How are subject to the appeal trial, the effect of the appeal. If the appeal is received only in the devolution effect, the embargo will also be infringing.

  • If the appeal prior to the appeal had a stay of proceedings, this will have them.
  • If the appeal had no such effect, the EI also does not have it while it is running provisionally.
3.3.2 – Returnable

The extent of devolution is restricted to what has been the subject of dissent.

CPC, art. 530 – a matter of EI that is subject to disagreement does not prevent the review of the whole question of fact and proof.

3.3.3 – Translate

Examination required by law (statute, absolute incompetence, double degree required, lack of conditions of action, condition, etc.), i.e., issues of public policy.

The appropriate body to judge them must examine ex officio matters of public policy, that is, their knowledge is not restricted.

3.3.4 – Expansive Effect (Only the Subjective Aspect)

Expansion of the trial beyond the contested decision and the person of the applicant to meet other procedural acts (other than the defendants) and benefit others (e.g., 509): co-parties and third parties legally.