Civil Procedure II Class Notes: Summary & Ordinary Procedures

Posted on Sep 16, 2024 in Law & Jurisprudence

Civil Procedure II Class Notes

January 27, 2010

Procedure and Summary Procedure

PROCEDURE: Set of procedural acts done for the purpose of obtaining legal protection.

PROCEDURE: This is the way in which procedural acts will develop within the process.

SUMMARY PROCEDURE: It is characterized by the concentration of procedural acts and the speed of these acts; that is, the procedural acts happen in less time with their practice more quickly. This does not mean that fewer actions will be practiced. All the procedural acts are performed normally, however, at different times (the audiences are made within 30 days (usually)).

  • Assumptions: Must meet the requirements of Art. 276 of the Brazilian Code of Civil Procedure (CPC).
  • Value Question: Item I – In cases where the value does not exceed sixty (60) times the minimum wage.
  • Feature: Item II and points: The causes, whatever the value, of rural leases and sharecropping.

b) Billing to the joint owner of any amounts owed to the condominium.

c) Compensation for damages to urban or rustic buildings.

d) Compensation for damage to vehicles in overland accidents.

e) The recovery of insurance, for damage to vehicles in accidents, except in the cases of the implementation process.

f) Collection of fees for professionals, except as provided in special legislation.

g) That deal with revocation of donation.

h) In other cases provided by law.

Summary: Schedule of Sequence

February 2, 2010

Summary Procedure (Continued)

4. SUMMARY PROCEDURE:

a. Initial Application: In addition to the requirements of Arts. 282 and 283, must meet the requirements of Art. 276. A list of witnesses will be presented; no penalty will be applied to the estoppel, although the judge always seeks the real truth (in this case the judge may hear). Skill is not required, since there is an understanding that it may be required until the closing of the investigation; however, again comes into question the real truth.

The plaintiff appears as the initial actor of the procedure. Articles 274 to 281 of the CPC are the rules for summary procedure.

  • In the initial act, the author should cite the witnesses. If they cite, it shall debar and can only cite (splice) if the judge accepts.
    • Receipt by the Judge: The judge, upon receiving the application, may determine its amendment or its refusal. On the other hand, if all the assumptions and conditions are present, determine the quote.
    • Initial Hearing: Upon receipt of the application, the judge determines the defendant’s summons to appear at the hearing (Art. 277).
    • Defendant’s Response: If conciliation is not obtained, the defendant must give a written or oral defense in the same act and shall comply with the requirements of Art. 278. The defendant may also submit an application in opposition: it is the request by the defendant in response to the author, this request related to the facts described in the original. The purpose of the legislature was judicial economy.
    • Default: If the defendant does not attend the initial hearing, they will be considered in default. If they appear without counsel and do not enter into an agreement, they will also be considered in default.
    • Hearing Education: § 2 of Art. 278. Only there will need to be heard oral evidence to be harvested.
    • Verdict: The judge will pronounce the verdict in open court or within ten days (Art. 281).

February 10, 2010

Ordinary Procedure and Initial Petition

ORDINARY PROCEDURE: The ordinary procedure is governed by Title VIII of Book I of the CPC, distributing to the field of Arts. 282 to 475. The acts to be practiced obey a logical order, from the filing of the action until the verdict. And these acts may be combined, because the purposes for which they are addressed and the goals themselves, in phases, which are segments of the procedure.

  • Initial Petition (Rules 282-285-A) (The act that is the beginning of the process; it is through it that the action is brought. Without it, we do not talk about the process).

Art. 282, § 1:

I – The judge or court to which it is directed (will be sent to the judge or the court, for example, is when the court cites to 1 stick of work).

II – The names, surnames, civil status, profession, domicile, and residence of the author and the defendant (mandatory requirements are: full name and address; if unknown, other information can be put in).

III – The fact and the legal grounds for the request (no need to copy and paste the law (only show what the law is about); must also put jurisprudence, doctrines, because the judge is obliged to know the law).

IV – The claim and its specification (must be requested specifically, not generically, because if it is generic, the judge may have to amend it).

V – The value of the claim (every question must contain a value, even if it has no material value; if not, the judge can send the petition to be amended or even reject it).

VI – The evidence that the author intends to demonstrate the truth of the allegations (must attach all documents necessary for the action).

VII – The application for quotation of the defendant (is necessary; if not on the application, the judge may require the amendment).

  • THE CLAIM (Art. 286) (Prerequisite to the application; any application must be fixed and determined uniquely; it may be formulated in a generic way). (The request is certain: as the object. The application is determined: the quantity desired).

PS: The application is the core of the petition. It expresses what the author intends to state against the defendant. The application can be viewed from two different angles, which are shown as an offshoot of the same phenomenon: immediate demand and mediate request.
a. Immediate request is to request judicial review, i.e., the kind of action that the author wishes to obtain. It is addressed to the judiciary because it is responsible for adjudication.

b. Mediate request relates to the specific interests of life that is sought through the action in the face of the defendant to whom it is addressed. It is the enclosing element of the jurisdictional action, defining the content and scope of filling judicial pleading.

  • Generic Order (Art. 286) (Is that right on the object, but for an indeterminate amount).

Art. 286:

I – (Universal measures: those that deal with the universality of law and fact) that what is right, but undetermined.

II – Are actions where no one knows the value of the claim (e.g., medical treatment).

III – Are actions whose value depends on the defendant’s presentation. If you have a request right but not the value until the defendant presents it.

  • Implicit Application (Art. 293) (Claims are that the judge should grant even when not explicitly required in the application). Ex: (Statutory interest, monetary correction, legal fees, honoraria – are implicit requests).

Article 293. Requests are narrowly construed, it being understood, however, the main legal interest.

  • OVERLAPPING CLAIMS: It involves overlapping claims, actions, totally different as to cause or to the application itself, since the same parties. There are these actions an essential connection subjective. Two related actions prove it, although several in common bear at least one of individualizing elements: parties, question, or request. The first subjective characterizing the connection and the last two connection objective. They are divided into:
  • Simple Combination: (The author makes two or more applications and intends to succeed at all. Applications may not be dependent on the others).
  • Successive Overlapping: (The author also makes two or more applications and intends to succeed at all, but the merits of an application depend on the merits of the other).
  • Alternative Combination: (The author makes two or more applications, but wants to succeed in only one of them, without giving preference).
  • Subsidiary/Casual Combination: (The author makes two claims or more, seeking success on them, indicating the order of preference).

February 17, 2010

Rejecting the Initial Petition and Defendant’s Responses

REJECTING INITIAL (Art. 295)

Article 295. The application will be rejected:

I – When inept.

II – When the party is clearly illegitimate.

III – When the author lacks procedural interest.

IV – Where the court finds, therefore, the decay or prescription (Art. 219, § 5);

V – When the type of procedure chosen by the author does not correspond to the nature of the cause, or the value of the action, in which case it will not only be rejected if it can adapt to the type of legal procedure;

VI – If not met the requirements of Arts. 39, sole paragraph, first part, and 284.

Sole Paragraph. It is considered inept the application when:

I – It misses the application or cause of action;

II – The narration of facts does not follow logically from the conclusion;

III – The application is legally impossible;

IV – Contains incompatible applications.

PS: The application will be rejected by the sentence, which the author may appeal. The judge may appeal to receive within 48 hours to exercise the court to withdraw and reform its decision.

  • DEFENDANT’S RESPONSES: The defendant can: contest (defending), counterclaim (counter); exceptions listed in Arts. 134 and 135 (CPC) when it comes to preventing the judge or the court.

Within a case, the defendant may file within a process: denial (is aimed at defense), counterclaim (aims to counterattack, because it will make the defendant claims, present facts against the plaintiff, or, in phase, the defendant becomes the author and the author becomes the defendant. The defendant is not required to make a counterclaim in the same case, but for reasons of procedural economy, speed, the legislature allowed to do that in that case), and finally, exceptions (there the purpose of opposing or against the judge tells the court – except power).

2.1 Challenge: Pleading where the defendant will present any defense. The defendant will have 15 days to contest (counted joined in the proceedings of the writ of summons, letter of summons, notice, or letter rogatory receipt duly enforced, as provided in Art. 300).

Article 300. It is for the defendant argued in its defense, the entire defense, stating the reasons in fact and law, with which he is contesting the request of the author and specifying the evidence it intends to produce.

  • Preliminaries: Are the materials listed in Art. 301 and its subsections. Should be reproved before the merit = (placed in court proceedings).
    • Principles: Classified as:
  • Principles of the Burden of Challenging Specified: To say that the defendant has the burden to challenge the fact attributed to him by the author; otherwise, it is assumed the true fact is not contested.
  • Principle of the Event: The defendant must submit all matters of defense because, in the event the judge rejects a thesis, they will analyze the other.

February 24, 2010

Content Challenge, Counterclaim, and Exceptions

CONTENT CHALLENGE: The defenses of the defendant in the defense may be procedural or substantive:

  • Procedure (Preliminary – Art. 301): Imply the extinction of the process without examining the merits or otherwise terminate the process, as is the case of absolute power, refer to Article 301 preliminary.
  • Substantial (Merit): After the claim of the preliminaries, if any, the defendant must present the defense of merit, which can be direct or indirect. In direct defense, the defendant denies the facts articulated by the author. In indirect defense, the defendant presents facts that impede, modify, or extinguish the right of the author.
  • Alegáveis Materials After the Defense: After the defense, the defendant may only leave the issue referred to in Art. 303.

Article 303. After the challenge, it is only deducted when new claims:

I – For supervening right (he that came, was born later);

II – Racing to the judge know their craft (matters of public policy);

III – By express statutory authorization, can be made at any time and trial (are matters of public policy, which can be challenged at any time).

  • COUNTERCLAIM: Is the document by which the defendant may counter-attack the author. It is a real action of the defendant against the author. The counterclaim is only possible if it is connected with the main action or the fundamentals of defense (Art. 316).

Section 316 (Offering the counterclaim, the counterclaim author will be notified in person of his attorney, to challenge it within 15 (fifteen) days.)

Article 317. Withdrawal of action, or the existence of any cause that extinguishes, does not preclude the continuation of counterclaim. (Means that if for any reason the action is extinguished, the counterclaim continues.)

Article 318. Judging will be in the same sentence the action and counterclaim. (Because these actions are related, though they are in different processes, as are connections.)

  • Defendant > Reconvinte, which is the applicant. / / Author > Reconversion, which is required.
  • Deadline: The deadline is 15 days and must be observed the rule in Article 299. The author counterclaim may, within 15 days, dispute, in accordance with Article 316.

Article 299. The defense and the counterclaim will be offered simultaneously in autonomous pieces; the exception will be processed in the main attached to the file.

  • EXCEPTION: Its legal status is a procedural step since it does not address the merits of the lawsuit, but only decides that this matter is preventing the processing of the main action. (Art. 299 – end: The exception is processed in the main attached to the file).
    • Purpose: Aims at deciding some procedural matter that is preventing progress in the process.
    • Subjects: The party may oppose in the face of the judge (an impediment or suspicion), or in the face of trial (incompetence).
    • Procedures: Attachment is assessed on the case. Not so new legal relationship, just a simple application of remedies. The exception is decided by an interlocutory decision which can be aggravated (in this case the action taken by the judge is an interlocutory decision, where to use it as the wrong, that “in this case the judge accepts or collects the dossier”).
    • Deadline: Exception Incompetence: In this case, the deadline is 15 days; their difference is within the period in which starts the counting process of the defendant “the count of science,” which can happen before or after the opposition. The motion to dismiss may be filed only by the defendant. The author cannot, for it was he who chose the judge/court. When the impediment stands in exception to the nomenclature referring to the defendant’s excipient and the author called a save.
  • Excipient: Defendant
  • Except: Author

Article 307. The excipient argue incompetence in reasoned and properly completed application, indicating the court to which declines.

Article 308. Concluded and the case, the judge will handle the exception, unless the hearing within 10 (ten) days and deciding in the same period.

  • Suspicion: In the case of suspicion, in this case, the main process must necessarily be suspended until the final decision of the exception because their deeds may be void due to absence. If the judge accepts the exception of jurisdiction, refer the case to the competent court, returning the time to run when the parties are summoned in the new trial; if not accepted, the term returns when the parties are summoned this decision. When she is not welcome back the deadline after the date of notification.

Can only be argued away in the event of relative incompetence. The absolute lack of assessment is raised by the defense as preliminary. Art. 301, II.

If the defendant has not contested by the estoppel exception, it will occur and therefore the extension of jurisdiction.

Arts. Related: Arts. 304, 305.

  • Exception of Incompetence: Only can be argued in competing hypotheses relativa.se the defendant does not argue by estoppel exception will occur and consequently the extension of jurisdiction. If the judge to whom the case is declined understands that he is incompetent, should arouse negative conflict of jurisdiction, in this case, will decide the competent court is the judiciary. Who judges the exception incompetence is the judge; if the judge did not accept it, it causes the disease.
    • Aside from Impediment or Suspicion (Purpose: To prevent the case being heard by a judge partial).
      • Suspicion: If the suspicion of the judge is not the defendant (Art. 135), estoppel will occur.

Article 135. Considers to be founded suspicion of partiality of the judge, where:

I – A close friend or enemy capital of any party;

II – Any party is a creditor or debtor of the judge, his spouse or their relatives, straight or on the side until the third grade;

III – Presumptive heir, donee, or employee of any party;

IV – To receive gifts before or after the beginning of the process, advising some of the parties regarding the subject of the question, or furnish the means to meet the expenses of litigation;

V – For trial of the cause in favor of one party.

Sole Paragraph. You can also judge held suspect because intimate.

  • Offside: Since the impediment is a matter of public policy (Art. 134) and are not subject to estoppel.

Section 134. It closed the Court to exercise its functions in litigation or volunteer:

I – That is a party;

II – Which has acted as an agent of the party, officiated as an expert, worked as a body of prosecutors or testified as a witness;

III – Who met in the first degree of jurisdiction, having delivered her ruling or decision;

IV – Where it is postulated as part of the lawyer, your spouse or any relative, by blood or marriage, straight, or the collateral line to the second degree;

V – When a spouse, relative, blood or affinity, of either party, straight, or in the side, until the third grade;

VI – When referring to direction or management of a corporation, party to the cause.

  • Procedure (Arts. 312 to 314)

a) The court may recognize the impediment or suspicion, sent the case back to his replacement. b) The judge may not agree when offering reasons in writing and should the case be remitted to the court. With respect to resources: If the court accepts then the exception is not applicable any kind of appeal. On the other hand, if the court dismisses the exception, it is inappropriate to use special or extraordinary.

Article 312. The party will offer the exception of an impediment or suspicion, specifying the reason for refusal (articles 134 and 135). The petition, addressed to the judge, may be accompanied with documents in which the excipient found the allegation and will contain the list of witnesses.

Article 313. Dispatching the petition, the judge, recognizing the impediment or suspicion, order the referral of the case to its legal replacement, otherwise, within ten (10) days, give his reasons, together with documents and list of witnesses, if ordering the referral of the case to court.

Article 314. Noting that the exception has no legal basis, the court shall determine their filing; otherwise sentence the judge in charge, ordering refer the case to his legal substitute.

  • REVEALED: It means the situation where the defendant does not contest the action or ceases to challenge any facts attributed to him, in absentia, so is the lack of objection by the defendant’s part. More precisely, in absentia can be understood as “the legal institution defined in the scheme of CPC as the state that fits the defendant, its inaction in the face of not offering timely and properly, the defense, not Despite having been regularly cited.
    • Effect (Split into two effects):
      • Presumption of Correctness Exceptions (Presumed to be true the facts stated by the author. This presumption is not absolute but relative ratio of the principle of free assessment of evidence and provide rational persuasion because if the court finds evidence in the record that leads to decide differently, is not obliged to rule in favor of the author only because the defendant fails to appear.)

Arts. Related: Arts. 319, 320, 321.

Article 319. If the defendant does not contest the action, it considers will be true the facts stated by the author.

Article 320. The omission does not lead, however, the effect mentioned in the preceding Article: (in items below)

I – If, having a plurality of defendants, some of them challenge the action (the facts should be shared).

II – If the proceedings relate to inalienable rights (they are facts which the party can not afford).

III – If the application is not accompanied by a public instrument, that the law considered essential to the proof of the act. (Some actions can only be proved by a document public, the public is essential instrument.)

  • Terms: Art. 322.

Article 322. Against the patron who has not revel in the file, run the time regardless of subpoena, from the publication of each act making.

The single paragraph in default may intervene in any phase, getting it into the state they find.

As the sole paragraph of Article 322 of the CPC, once having entered the legal relationship procedural revel being entitled to exercise all procedural acts buried by estoppel does not even produce evidence. In this sense it is the Summary of STF 231: “The revel in civil procedure, can produce evidence from which appear in due course.”

March 3, 2010

Early Protection and Injunctive Relief

EARLY PROTECTION

  • Injunctive Relief – Art. 273: Consist of the possibility of anticipating the effects of a sentence. It may be total or partial; the judge anticipates what is being sought on an interim basis. It is applicable only in the process of knowledge in all its procedures.

Article 273. The judge may, at the request of a party, anticipate, wholly or partially, the effects of the protection sought in the original application, provided that there is clear evidence, is convinced of the likelihood of the claim.

  • Requirements
    • Request of a Party: The judge cannot grant the authority of office.
    • Likelihood of Allegations: Mere probability, not certainty of effects.

Article 273. The judge may, at the request of a party, anticipate, wholly or partially, the effects of the protection sought in the original application, provided that there is clear evidence, is convinced of the likelihood of the claim.

  • Founded Fear of Damage Repaired or Difficult to Repair: The judge could not grant the authority when there is a danger of irreversibility of filling anticipated. Guardianship may also be granted when there is abuse of rights of defense, or defense arguments are clearly inconsistent or postponing the purpose of the defendant, i.e., the defendant has done with delaying the evidence irrelevant, incidents, descabível, etc. with the sole intent to delay the process.
    • Time of Grant: The injunction may be granted at any time: in the initial order, the curative act, education, and even in the sentence.
    • Guardianship Issues and Indisputable Fact: That is incontrovertible evidence that is independent, as was recognized by the defendant. § 6 of Art. 273.

§ 6o The injunction may also be granted when one or more of claims combined, or share them prove to be uncontroversial.

  • Differences Between Injunctions and Interim Guardianship: Guardianship advance: It is anticipated that which was asked at the end. Already a precaution aimed at safeguarding the effectiveness of the final disposition, in a major action.
  • Differences Between Trial and Injunctive Relief in Advance of the Dispute: The injunction is a decision of fundamental likelihood judgments of probability; the trial’s anticipated LIDE consists of a final decision (opinion of course).
  • Fungibility of Precautionary
    • It is the possibility of replacing the interim injunction, on grounds of similarity and the difficulty to distinguish them in certain situations. The judge conceded that it was more appropriate to the case.
  • Astreinte (Fines)

March 17, 2010

Phases of the Process and Preliminary Arrangements

This process is divided into 4 phases, as follows:

1st Phase: Postulatória

2nd Stage or Phase: Exonerating Ordinator

3rd Phase: Preliminary Investigation

4th Phase: Operative

  • PHASE ORDINATOR: Ordinator is at the stage that the judge will review the overall process, putting in the same order, determining a direction to be followed. The judge basically develops three activities: a) Verify the need for the author to challenge the defense, b) Remedy any irregularities or, if irremediable, terminate the process, c) Order the parties to specify their evidence, to motivate them.
  • PRELIMINARY ARRANGEMENTS: Arts. 326, 327, and 328 (Judge may perform any of the three activities described).

Article 326. If the defendant, recognizing the fact that the foundation action, opposes him another hindrance, modified or extinguished the right of the author, this will be heard within ten (10) days, giving it the judge production documentary evidence.

Article 327. If the defendant plead any matter enumerated in Art. 301, the judge will hear the author within 10 (ten) days, allowing you to produce documentary evidence. Verifying the existence of irregularity or nullity reparable, the judge will meet them, setting aside no later than 30 (thirty) days.

Article 328. Upon fulfillment of the preliminary arrangements, or no need of them, the trial judge shall issue as the state of the process, noting what has the next chapter.

  • Reply: (By virtue of the constitutional principle of adversary proceedings, the judge will give the author an opportunity to express themselves on the defense when they are present the chances of Arts. 326 and 327). (Would be a challenge to the defense, this manifestation of the author is required every time a defendant to argue the preliminary and/or attach documents. This demonstration must be made within ten days, the author can add new documents. The defendant may, in ensuring the principle of contradiction, challenge these documents.)
    • Trial as the State’s Case: The judge will pronounce the trial early when LIDE: a) When the issue of merit is in fact and law, and disregard of evidence in open court or expert evidence, b) Before the default, noting that the Judge may order production of evidence if not convinced of it. Early Trial of the Suit:

Article 330. The judge will know directly of the application, uttering the sentence:

I – When the issue of merit is solely in law, or, in law and in fact, no need to produce evidence to the hearing;

II – When they occur in absentia (Art. 319).

Article 329 (If there is any event described in Arts. 267 and 269, II to V, the judge shall declare the proceedings terminated.)

(Where the court verifies any of the cases of Art. 267 extinguished the case without resolving the merits. However, if at this stage to verify any of the cases of Art. 269, II to V shall render a decision with trial/resolution of the merits.)

c) Preliminary Hearing: If the judge does not encounter the situations described in Arts. 329/330 designate preliminary hearing (Art. 331).

Article 331. If there is any of the cases mentioned in previous sections, and relate the cause of rights which allow the transaction, the judge shall appoint a preliminary hearing, to be held within 30 (thirty) days, for which the parties will be summoned to appear, can be represented by an attorney or representative, empowered to compromise.

§ 1 Obtained conciliation, will reduce the term and approved by sentence. (The judge tries to reconcile the parties, reconciled to extinguish the process.)

§ 2 If, for whatever reason, the reconciliation is not obtained, the judge shall determine the points at issue, decide on the outstanding procedural issues and determine the evidence to be produced, hearing and trial if necessary. (In this case, fixed the points at issue (that over which the parties are settling/are in conflict).)

§ 3 If the right transaction at issue does not admit, or whether the circumstances of the case reveals that it is unlikely they were obtained, the judge may, first, clean up the process and order the production of evidence pursuant to § 2.

Stages: An attempt to reconcile § 1:

Reorganization of the Process:

  • Fix conflicting points.
  • Decide any outstanding issues.
  • Determines the evidence to be produced.
  • Designates preliminary hearing.

April 7, 2010

Matters for Proof

MATTERS FOR PROOF

  • The Summary Procedure
  • Original Application
  • The Application
  • Defendant’s Responses
  • Default
  • Phase Ordinator