Civil Procedure
2.5 The principles of procedural law
One can divide the principles governing the law of civil procedure in two categories, General and interns.
General Principles, as a rule, are applicable in all branches of law, while the inmates are so applicable only in the business of civil procedural law, and thus are responsible for differentiation of this branch with other branches of law.2.5.1 General Principles of Civil Procedure
Principle of due process of law – such a principle laid down in Art. 5, Liv, CF, provide that for each type of dispute, the law must provide a form of composition appropriate court, as no injury law ceases to be enjoyed by the judiciary. For the civil proceedings, due process is the principle and incorporates information that covers all the other principles listed below.
Principle of impartiality – ensures the parties a fair trial, conducted by a Judge equidistant from the parties, and no interest in the process. This principle stems from the guarantee of Judge Natural (regularly invested in the jurisdiction and jurisdiction over the proceedings submitted to it) and gasket Expresso courts of exception (the court must have been created prior to the events that led to the deal submitted to your sieve) .
Adversarial principle – the art. 5, LV, CF, aims to ensure greater justice in the decisions, since it gives the parties the right to participate in the process and consequently on the formation of convincing the judge.
Wide Principle of Defense – also referred to in art. 5, LV, CF, is the opportunity for the parties to use all means of defense available to the security of their interest. This principle, or rather, your violation arises the idea of no defense, which is developing a premature verdict by the judge, preventing the parties exhausted all means of defending their rights guaranteed to them.
Principle of reasons – the Federal Constitution, in its art. 93, IX, requires courts’ explicit motivation of all its acts making. Thus, all decisions should be grounded, ensuring the parties to know the reasons for convincing the judge and that led him to prolate such a decision. There is one exception to this principle of motivation: the trial jurisdiction of the Court of Popular Jury.
Principle of Advertising – according to the CF, art. 5, LX, all acts of Judge shall be public, thus ensuring a control of the parties to guarantee a correct procedure. Advertising is the rule, and it will be observed not only prevail when the social interest or the protection of privacy of the parties.
Principle of Double Degree of Jurisdiction – This principle requires the existence of two bodies, inferior and superior. If the party feels unfairly treated by the sentence handed down by the first instance, may seek a second (which must always exist), aiming to recast the sentence.
2.5.2 Principles of internal civil procedurePrinciple of Action and availability – the jurisdiction is inert, prohibiting the practice of craft and must always be provoked by the parties, whether in civil proceedings, whether in criminal cases. In civil proceedings, for the composition of particular interests (available and private goods), the prosecution and further action should be screened by the author’s discretion. No. Have the same happens in the criminal proceedings. This principle enables selfcomposition party, the application of the effects of default and the admission of the confession as a factor in convincing the judge.
Principle of Real Truth – unlike criminal proceedings, the civil judge is not required in the pursuit of real truth. The rule is that it is for the author to prove the facts constituting his right and the defendant required to prove the facts of the facts extinctive, amending or impede the right of the author.
Principle of procedural fairness – this principle requires the parties to act with loyalty, integrity and dignity throughout the process. It is not merely a recommendation ethics, without effective enforcement, since the law seriously considered such a premise. Thus, no response to this principle will result in violations can be punished with censure, suspensions, fines and even exclusion.
Orality Principle – This principle recognizes the importance of oral manifestation of stakeholders, and the proof made orally in the Formation of the conviction of Judge. The principle of orality overrides the spoken and written word and it should be used only when essential, p. ex., documentary evidence and the record of procedural acts. The oral procedure has characteristics as the binding of the individual Judge, the concentration of the acts on a single audience and irrecorribilidade of interlocutory decisions. This principle is observed only in the rite accelerated, the Special Civil Court.
Principle of economy to proceedings – the acts of procedure should be performed whenever the least burdensome way possible to the parties. This principle is the rule of the use of procedural acts by which the already made, since they have not directly linked to the nullity before, remain intact and valid.
1. The jurisdiction and the action
1.1 The jurisdiction (Articles 1 and 2, CPC)
Jurisdiction is the power to impose, say the law, given exclusively to members of the Judiciary. Actually it is a power-Duty having the State Judge, through its courts to apply the law to this case, since all disputes submitted for analysis must be solved.There are two kinds of jurisdiction:
1. Contentious: kind of jurisdiction where there is conflict of interest, ie, its purpose is to settle disputes. Characterized by the possibility of conflicting or contradictory.
2. Voluntary sort of jurisdiction where there is no conflict of interest in order to all interested parties the same goal, for example, in consensual separations, executions of wills, inventories, appointments of guardians, applications for judicial Alvaro. Refers to the approval of applications that do not involve litigation. There are no parties, but just interested. There is res judicata.
The CPC itself, in its art. 1, provides that the civil jurisdiction, litigation and voluntary, is exercised by the judge throughout the national territory. However, there must be triggering the interested party. Hence it was concluded that no Judge shall provide the judicial protection sena when the party or the party concerned to apply in the cases and legal forms.
1.2 The action (arts 3rd to 6th, CPC)
1.2.1 Preliminary considerations
Action is the subjective public right to deduct a claim in Judge (subjective as it pertains to each, all given to the public by state law and because the procedure is mandatory). Thus, the rule of art. 6, CPC, which provides that no person may plead foreign law in their own names, unless authorized by law, should therefore be observed.
In short, the action is entitled to invoke the judicial protection of Estado.juiz. It is the proper procedural way to defend in courts, an interest.
To propose or challenge an action is necessary to have an interest and legitimacy.
The author’s interest may be limited to the statement:
I – the existence or absence of legal relationship;
II – the authenticity or falsity of the document.
1.2.2 Terms of action
Conditions of action are also requirements of the action but are specific requirements related to the feasibility of action, ie the possibility, at least apparent success of the originator of demand.The lack of a condition of action will cause the judge to reject the initial or termination of proceedings for lack of action without prejudice, according to the arts. 295, 267, 329 and VI, all of the CPC. It will be possible amendment to the original art. 284, CPC, so that it fits the conditions of action.
The conditions of action are three:1. Legitimacy to the cause;
2. Interest to act;
3. Legal possibility of the application.Legitimacy to the cause: to appear legitimate in a lawsuit are holders of interest in conflict (legitimation ordinary). Thus, the author must be the holder of the claim raised in Judge. The defendant is one who resists this claim. The law may authorize others to come to judge, in his own name, litigating in defense of rights of others (extraordinary legitimation).
Legitimacy
The legitimacy of what is involved here is the legitimacy for the cause (cause legitimatio ad), which should not be confused with the legitimacy for the process (legitimatio processum d) ability to be judge, that assumption is procedural.
Only the legitimate party who is authorized by the order on counsel for postulating Judge. Legitimation is ordinary (CPC, 3) when the author claims to be the right holder subjective material whose guardianship requests (active standing), and when he says that the ownership of the obligation of the defendant (Passive legitimacy).
It is extraordinary legitimation (CPC, 6th), when someone is licensed, is the Judge, as plaintiff or defendant, for, in his own name, defend rights or interests of others, which is only permitted in cases specified by law.
Interest to act: the importance of acting comes from the analysis of necessity and appropriateness. Incumbent upon the author to demonstrate that without the interference of the judiciary is at risk of his claim not be met voluntarily by the accused. The author falls too, the choice of appropriate supervision that will be most appropriate in this case.Legal possibility of the application: is the absence of express prohibition in law to a request by the author in his original.
1.2.3 Elements of the action
Are elements of action: the parties, the application and the cause of action (cause petendi).
a) the parties – the subject of the dispute, which are the subject of the action;
b) the application – a step sought court as an asset;
c) the cause of action – the reasons giving rise to the claim and providence.These elements must be present in all actions, as these are identifiers.
Only through the elements of action is that the judge may examine the lis pendens, res judicata, connection, etc. continence., In order to avoid conflicting decisions.
3.2.5 The absolute and relative power
Are absolute criteria for competency set by the subject, the person and function. The absolute power is the one established in the public interest, not being subject to modification by the will of the parties in the forum of choice.Not to observe these rules entails absolute nullity of the proceedings.
Already on the jurisdiction, unlike the absolute, is fixed for appreciating more the interest. It takes as its premise the facilitation of the defense, and if you do not suspect at the appropriate time (defense) can be extended. It’s what have art. 114, CPC, “extending the competence, if the defendant not opus exception to jurisdiction of court and the judge in the case and legal term.” The extension of jurisdiction, then the mechanism by which a judge at first jurisdiction to prosecute certain fact, becomes responsible for not having, the defendant, accused of incompetence in due course.
A relative incompetence can not be decreed by a judge in office. Unlike what happens with the absolute.
Art 6 one can claim in its own name rights of others, unless authorized by law. The replacement procedure is an extraordinary kind of legitimacy. This is a phenomenon in which someone authorized by law, acts in Judge, in his own name and their interest in the defense of rights or interests of others. The replacement procedure is part and can therefore exercise all procedural rights to parties. But can not commit acts of provision of substantive law (transaction, renunciation, recognition of the claim) without the consent of replaced. The replacement procedure can be assimclassificada: a) initial or supervening: It’s early when the action is filed against the deputy, and when supervening in the course of the process, there is a substitution (VG. The seller of the process remains contentious Objet – CPC, 42, first paragraph), b) exclusive or concurrent: It is unique only when the substitute has the property right of action, when also the competitor is entitled to be replaced in Judge (VG. vindicatory action proposed by a condominium ).
Legitimacy extraordinary
Legitimacy is also called an extraordinary place, as occurs in exceptional cases, arising out of express law or legal system, where it is assumed that someone go to the Judge, in his own name, to defend interests of others. Thus, replacement procedure is one that acts as part of positing and defending the right of Ultramar. As an example, the condominium. According to article 1314 of the Civil Code, “each joint owner can use the thing as its destination, about her exercise all rights compatible with indivisum, claiming her third, to defend his possession and cede their share ideal or burn it. ”
Rationale:
Art 1314 CC
Arts. 29 through 38, 44, 45, 48 to 60 of the CPP
Arts. 42 and 43 of CPC
Legitimacy ordinary
The legitimacy of a party is a condition of action. As a rule, no one can go to the judge in his own name, to defend rights of others, on pain of lack of action on the part of illegitimacy. Thus, one who claims to be the holder of a right, can go to the judge in his own name, for it postulates and defend it. It is therefore legitimate ordinary, in which the subjects will judge, in his own name, to litigate on their rights.
Rationale:
Art 6th CPCLaw No. 9668 of 23.6.98, set new text for the art. 18 of the CPC, providing that: “art. 18. The judge or court, ex officio or upon request, order the litigants in bad faith to pay a fine No. surplus to one percent on the amount of the claim and indemnify the other party losses which it suffered, plus attorney fees and all expenses he has wrought. “. We, therefore, some considerations which we consider relevant to the topic.
First, it should remember that back in the newsroom earlier granted by Law 8952 of 13.12.94, Art. 18 of the CPC gave powers to the judge to apply the letter of the fine resulting from litigation in bad faith. The legal device, the textualized that “… curse the judge,” implies that it is imposing to the judge, but actually only gives you a college decision, including its discretionary power. Although the rule is cogent and requires a power-Judge’s Duty, linked to the public interest and the dignity of justice, this act only when understood in this sense because, not having anything that requires you to condemn.
Moreover, it is important to stress that imposing a fine, ex officio, due to the procedure of reckless and malicious party, can not be confused with bias. The only fact that the judge concluded it is a situation of bad faith on the part, imposing a legal sanction, does not take such a conclusion, as judged by the Court Gaucho:
“… Litigation in bad faith. There is no impartiality IN Apply penalty litigation in bad faith on the craft. By Judge MUST do so in order that the NAO becomes Instrument Contrary to Justice, being used only for PROTEL with bureaucratic maneuvers and malicious, the effectiveness of law subjective part. APPEAL Improv.
(Targ – 4th Civil Chamber – APC no. 194,003,612 – rel. DARCI WACHHOLZ ARI)
Undoubtedly, this fact is not going to tarnish the principle isonomy (arts. 125, I, CPC, and 5, caput of CF/88) because this is exactly in treating unequals unequally. In this case, the litigants in bad faith should be treated as such, without causing breakage of impartiality.
The subjective power of acting magistrate’s office, however, finds limits on the constitutional principles and elements Goals set by the legal system, as set out in front.Relationship between bad faith and collapsing
Art. § § 20 and its of CPC, determine the payment of fees in lawsuits, as compensation to the winner who paid or will pay to your lawyer.
This does not occur in some special process, such as an injunction, tax executives and processes of labor, these last 2 related by art. 889 of the Labor Code, which provides law enforcement for implementing the execution Fiscal labor.
Both LEF (Law of tax foreclosures, Law 6.830/80) and CLT have anything about the lawyer’s burden be imposed on the winner sucumbente, with exegesis, which prevails in court, though it seems unconstitutional for violating the principle of equality and art.133 of the Constitution:
2.1. in the work process only applies to the defense collapsing when the employee is sponsored by the union’s lawyer and asked this court assistance in the form of Law No. 5.584/70;
2.2. in executions in general, and especially to implement fiscal, there is merely the formal beginning Dessen.
Said to be purely formal and formal application of the principle of defeat in executive processes because – although the extra work and time embargoes imposed by the debtors, with the most preposterous arguments, attorney’s fees fixed in the debtor’s defense have not any practical result, because it was stipulated to limit to 20% on the value of the debt, considering the fees of embargoes in conjunction with the implementation of fees.
This ceiling of 20% attorneys’ fees Defeat on the amount charged in the execution can be achieved in the execution itself. Ie both a debtor embargoed implementation, as others who do not, is subject to the same ceiling of 20% attorneys’ fees Defeat No matter how laborious the resulting embargoes.
Such situations are different, but the strict interpretation both debtors subject to equal treatment by imposing the same limit. It seems to us possible to close this unconstitutional interpretation of Praetorian. She faces the principle of equality, treating different cases the same way, to say No. opposites. The content of legal principle of equality (art.5, CF) is equal to the same address the unequal and inequitable, as Aristotle’s maxim often attributed to Rui Barbosa.
In the case of the State, for example, he paid his statutory Attorneys. Defeat fees, which should compensate the creditor for the work of the lawyer’s part, they are often insufficient to replenish the state the cost in hours and hours worked by several attorneys who worked to overcome the resistance of the debtors. This applies to any implementation of less than $ 5,000, oo.
Concerning the need for magistrates Serer more judicious to arbitrate the fees of collapsing, driven by the ideal of Justice, between 1985 and 1987 we developed a test that has become controversial in the Cortes Gaucho. Would wave to the arts. 68 and 69 of the Statute of OAB, and teachings of Vasconcelos Justin Piero Calamendrei remembering that “Judge and lawyer are like mirrors: each of them looking for the party … relet in himself his own dignity,” and indicávamos the minimum salary of the magistrate as the minimum wage to be hit by a lawyer with 2 years of activity (time then required to provide competition to judge). We achieve our goals, causing a revision of the traditional percentage formula causes minor economic impact, where the fees have to be set in minimum wages, or other criteria. But some do not judge approved the comparison of judges with lawyers, who showed considered inferior beings. 1
This essay (published in the Journal of Procedure 55, pág.197/203, and is cited by Theotônio Negrao, CPC Annotated, in 2nd grade III drought preceding the art.19), was developed before the advent of the Federal Constitution 1988, art.133 which gives contours of constitutional dignity barrister, whose compensation for the work can not get into ridiculous levels. However, the State Attorneys have isonomy salary with the judge and prosecutor, yet the collapsing, indemnity fixed at considerable proportion of tax executives, is much less than the profligacy of the state.
It is necessary to review that stance, trying to fix fees that effectively indemnify the value of the work of barrister. If someone has to pay for the work imposed on the winner’s attorney, undoubtedly is the loser – because if there was no resistance to this process would be unnecessary or at least faster. REVIEW While this does not occur, because the law is characterized by inertia, clinging to what is customary, we must look for another old rule is known to overcome the possibility of prejudice to the State. There is no cost bonus. When a debtor uses theses reckless, empty, incidents laziness, etc.., And hinders the progress of implementation, such conduct should be penalized unfairly, based on art. 17, inc. VI, CPC, while arbitrate attorneys’ fees by a debtor’s defense in a reasonable amount and independent of the application of the principle of defeat in the implementation, without which both are considered together for the ceiling.3.1 The Theory of defeat
Are by Chiovendaas main ideas on the theory of defeat.
Succumb, as defined in Aurelius, is not resist, give in, be defeated. In legal language the meaning is not different, being sucumbente one who is defeated in court dispute.
So is the fact that the legitimate goal of derrotaque collapsing. Subjective behavior of the parties not interested in the theory of the fall: due process, should bear the costs.
And the foundation of the doctrine of the fall is that the law enforcement process, should not encumber whom she breed. Who has the right can not suffer the injury because of wanting it to be achieved through judicial review.
The justification for the principle of defeat is uniform among the authors: that which is sought in need of legal protection, if not attended sena resorting to judicial, not to bear an economic sacrifice (which, according to Classic proposition, would decrease the value of recognized right), the sentence must prove that the right of the winner no less an exit process in which it was proclaimed to his race.
The theory of defeat, however, has proved insufficient to meet the specific situations in which not justify the party to bear the burden of defeat, though unsuccessful in demand. That’s when the theory of causality began to gain ground.