Civil Procedure Code: Key Concepts and Applications
**Civil Procedure Code: Key Concepts and Applications**
**1. Jurisdiction and Inertia**
No judge shall provide legal protection unless a party or the party concerned applies for it in the cases and legal form (CPC art. 2º). Thus, inertia is one of the characteristics of jurisdiction. However, there are matters which the court can appreciate ex officio, such as abatement (art. 267, item V).
**2. Service by Publication**
In the case of service by publication, the deadline for the contest begins to run when ending the delay. It is correct to say that the delay is to be determined by the court between 20 and 60 days, running from the date of the first publication of the notice.
**3. Rejection of Legal Aid Request**
Suzana filed a lawsuit against the Bank of Money, and one of the requests was for Legal Aid (Act 1060/50). Upon receiving the initial request, the judge rejected the request for Legal Aid, since she had not attached a statement of poverty. In accordance with Article 162 of the CPC and its paragraphs, the judge made an interlocutory decision (Art. 162, §2).
**4. Deadlines**
Regarding deadlines, check the incorrect assertion:
(E) The parties may, by mutual consent, reduce or extend peremptory time limits.
- (C) The term established by law or by the courts is continuous, not interrupting on holidays.
- (C) The deadline is extended until the first business day if the due date falls on a holiday.
- (C) After the period, the right to perform the act is extinguished, regardless of a court hearing, unless the party proves that they did not fulfill them for a just cause.
**5. Preliminary Hearing**
According to art. 331 of the CPC, the judge shall appoint a preliminary hearing, to which the parties are duly notified to appear and may be represented by their attorney or agent with the authority to settle. Among the acts of the judge, the decision to “designate a hearing on December 15, 2009” is an interlocutory decision, according to art. 162, §3 of the CPC. It is an interlocutory decision because the judge did not evaluate the merits but evaluated the conditions of the action: legal possibilities of the application, interested parties’ legitimacy, capacity to be in court, and procedural capacity (having an attorney’s postulatory ability). The judge received the request and decided to hold the hearing, ordering the summons of the parties.
**True or False**
- (V) CF/88, in its article 5, LX, provides that “the law may restrict the publicity of procedural acts when the defense of privacy or social interests demand it.” Therefore, procedural acts must be public, publicly performed, according to art. 155 of the CPC. According to this principle, the law authorizes access to documents and certificates.
- (V) The main part is the act of application, and the judge is what defines and holds the sentencing.
- (F) When the party revokes the mandate to their lawyer, and another lawyer does not want to sponsor the case, the former lawyer must notify the principal so that they appoint another professional. The former lawyer must stay for 10 days representing the constituency, provided that it is necessary to avoid prejudice.
- (V) Regarding language use in the process, the Code prohibits the parties and their advocates from using insulting remarks in the writings presented in the process. The judge may, ex officio or at the request of the victim, order them to be removed.
- (V) All judges have jurisdiction, but not all have the competence to hear and decide certain disputes. Only the judge has the legitimacy to adjudicate.
**6. Competence**
(V) Relative incompetence is raised by means of exception, within 15 days, leaving the process suspended.
**7. Citation Procedure**
(C) In the case of a writ of summons notice, the deadline for contesting the defendant is determined by the court.
**8. Deadline for Challenging**
The deadline for challenging a procedure done in the ordinary begins to flow from the effective citation of the defendant and the certified copy made by the bailiff.
**9. Effects of Service**
The service validates the preventive judge, induces lis pendens, and makes the legal issue litigious.
**10. Vernacular**
In accordance with art. 156 of the CPC, in all actions and terms of the process, the use of the vernacular is mandatory. The vernacular is the name given to the native language of a country or locality.
**11. Appeal Deadline**
I was summoned to the decision (sentencing) hearing in accordance with the procedural law which provides for the day June 12, 2009, and the deadline for appeal is 15 days. In this case, there is joint liability of the parties, and the action was deemed founded. When will the period begin streaming, and what is the deadline (you should put the end date)?
As per art. 184 of the CPC, the computation will exclude the start day and include the expiration day. The period begins to run only on the first business day after the summons. As the summons was made on 06/12/09 (Friday), the period begins to flow on 06/15 (Monday). Since there are joint parties, as per art. 191 of the CPC, the term will be counted twice to contest, appeal, and generally speak on the record. The deadline day closes on 07/15/2009 (Wednesday).
**12. Legal Separation**
Ana Maria filed a legal separation lawsuit against her former husband, Pedro. The judge scheduled the conciliation hearing for May 29, 2009, and stated that if there was no agreement, the term would begin to flow from the designated audience. When does the term end for Peter to present his defense, given that the deadline is 15 days?
The term for Peter to present his defense closes on 06/15/09. According to art. 184 of the CPC, the computation will exclude the start day and include the expiration day. As 05/29 falls on a Friday, the period starts from 06/01 (Monday) and ends on 06/15/2009.
**13. Paternity Investigation**
Maria Beatriz, representing her daughter Eduarda, filed a paternity investigation with a request for alimony against Mario. Upon receiving the initial application, the judge stated: “The representative of the author must provide evidence of Eduarda’s birth certificate. Intimate themselves.” What is the ruling of the magistrate in accordance with art. 162, its clauses, and paragraphs of the CPC?
A decision by the magistrate is an order for mere expediente. According to art. 162, §3 of the CPC, orders are all other acts of the judge practiced in the process, ex officio or at the request of a party, about which the law does not provide otherwise.
**14. Monitoring Process**
Joan received the initial quote of a process monitoring (recovery of the amount of $5,000.00) on June 29, 2009, at his home. When is the deadline to present his defense, once the deadline is 10 days for embargoes?
According to art. 241 of the CPC, the term of a citation or summons by mail starts to run from the date of attachment to the file of the notice of receipt. When the service of summons is by the bailiff, it is the date of attachment to the file of the warrant. It will not be possible to meet the deadline because it begins to run from the date of attachment, and this data was not available. Joana was cited on 06/29, but it does not say what date it was attached to the file.