Principles of Procedural Law and Jurisdiction
The Principles of Procedural Law
The principles governing the law of civil procedure can be divided into two categories: General and Internal.
General principles, as a rule, are applicable in all branches of law, while internal principles are applicable only in the realm of civil procedural law, thus differentiating this branch from other branches of law.
1 General Principles of Civil Procedure
Principle of Due Process of Law
This principle, enshrined in Art. 5, Liv, CF, mandates that for each type of dispute, the law must provide an appropriate form of resolution through a competent court, ensuring that no legal injury goes unaddressed by the judiciary. For civil proceedings, due process is the overarching principle that encompasses all other principles listed below.
Principle of Impartiality
This principle guarantees a fair trial, conducted by a judge who is impartial to the parties and has no personal interest in the outcome. It stems from the guarantee of a natural judge (regularly invested with jurisdiction over the proceedings) and the exclusion of ex post facto courts (courts created after the events leading to the dispute).
Adversarial Principle
Art. 5, LV, CF, aims to ensure greater justice in decisions by granting parties the right to participate in the process and, consequently, influence the judge’s understanding of the case.
Principle of Wide Defense
Also enshrined in Art. 5, LV, CF, this principle guarantees the opportunity for parties to utilize all available means of defense to protect their interests. Violation of this principle leads to the concept of denial of defense, which occurs when a judge issues a premature verdict, preventing parties from exhausting all means of defending their guaranteed rights.
Principle of Reasons
The Federal Constitution, in Art. 93, IX, requires courts to provide explicit justification for all their actions. Thus, all decisions must be grounded, allowing parties to understand the judge’s reasoning and the basis for the decision. The only exception to this principle is the trial jurisdiction of the Jury Court.
Principle of Publicity
According to Art. 5, LX, CF, all judicial acts must be public, ensuring transparency and allowing parties to monitor the proceedings for correctness. Publicity is the rule, and exceptions will only be made when necessary to protect social interest or the privacy of the parties.
Principle of Double Degree of Jurisdiction
This principle requires the existence of two judicial bodies, an inferior and a superior court. If a party feels unjustly treated by a lower court’s decision, they can appeal to a higher court (which must always exist) to seek a reassessment of the judgment.
2 Principles of Internal Civil Procedure
Principle of Action and Availability
Jurisdiction is inert, meaning it cannot act on its own initiative and must be triggered by the parties, whether in civil or criminal proceedings. In civil proceedings, which deal with private interests and disposable rights, the initiation and continuation of the action are at the discretion of the plaintiff. This principle allows for self-composition by the parties, the application of the effects of default, and the admission of confession as a factor in the judge’s decision-making.
Principle of Formal Truth
Unlike criminal proceedings, the civil judge is not required to pursue the absolute truth. The general rule is that the plaintiff must prove the facts constituting their right, and the defendant must prove the facts that extinguish, modify, or impede the plaintiff’s right.
Principle of Procedural Fairness
This principle requires parties to act with loyalty, integrity, and dignity throughout the process. It is not merely an ethical recommendation but a legally enforceable requirement. Violations of this principle can result in penalties such as reprimands, suspensions, fines, and even exclusion from the proceedings.
Principle of Orality
This principle recognizes the importance of oral presentations by the parties and oral evidence in the formation of the judge’s conviction. The principle of orality prioritizes spoken communication over written communication, with written documents used only when essential, such as for documentary evidence and the recording of procedural acts. This principle is primarily observed in the expedited procedure of the Special Civil Court.
Principle of Economy to Proceedings
Procedural acts should be performed in the least burdensome way possible for the parties. This principle supports the rule of using previously performed procedural acts, as long as they are not directly linked to a previous nullity, thus maintaining their validity and integrity.
Jurisdiction and Action
Jurisdiction (Articles 1 and 2, CPC)
Jurisdiction is the power to say the law, granted exclusively to members of the Judiciary. It is a power-duty of the State Judge, exercised through the courts, to apply the law to specific cases, ensuring that all disputes submitted for analysis are resolved.
There are two types of jurisdiction:
- Contentious: This type of jurisdiction involves a conflict of interest, aiming to settle disputes. It is characterized by the possibility of conflicting or contradictory claims.
- Voluntary: This type of jurisdiction does not involve a conflict of interest, as all interested parties share the same goal. Examples include consensual separations, execution of wills, inventories, appointments of guardians, and applications for judicial authorization. It involves the approval of requests that do not involve litigation. There are no opposing parties, only interested parties. There is no res judicata.
The CPC, in Art. 1, provides that civil jurisdiction, both contentious and voluntary, is exercised by judges throughout the national territory. However, it must be triggered by an interested party. Therefore, a judge cannot provide judicial protection unless a party or interested individual requests it in accordance with the legally established procedures and forms.
The Action (Arts. 3 to 6, CPC)
1 Preliminary Considerations
Action is the subjective public right to bring a claim before a judge. It is subjective because it pertains to each individual, public because it is granted by state law, and mandatory because the procedure is established by law. Thus, the rule of Art. 6, CPC, which prohibits individuals from pleading in the name of others unless authorized by law, must be observed.
In essence, action is the right to invoke the judicial protection of the State. It is the proper procedural means to defend an interest in court.
To propose or challenge an action, one must have both interest and legitimacy.
The plaintiff’s interest may be limited to the declaration of:
- The existence or absence of a legal relationship.
- The authenticity or falsity of a document.
2 Conditions of Action
Conditions of action are specific requirements related to the feasibility of the action, meaning the possibility, at least apparent, of the plaintiff’s success. The lack of a condition of action will result in the judge rejecting the initial petition or terminating the proceedings for lack of action without prejudice, according to Arts. 295, 267, 329, and VI of the CPC. Amendment to the original petition will be possible under Art. 284, CPC, to fulfill the conditions of action.
The three conditions of action are:
- Legitimacy to the cause (legitimatio ad causam).
- Interest to act.
- Legal possibility of the request.
Legitimacy to the cause: To be considered legitimate in a lawsuit, one must be the holder of the interest in conflict (ordinary legitimacy). Thus, the plaintiff must be the holder of the claim brought before the judge, and the defendant is the one who resists this claim. The law may authorize others to appear in court, in their own name, to litigate in defense of the rights of others (extraordinary legitimacy).
Interest to act: The importance of acting stems from the analysis of necessity and appropriateness. The plaintiff must demonstrate that without judicial intervention, their claim is at risk of not being voluntarily fulfilled by the defendant. The plaintiff also bears the responsibility of choosing the appropriate legal remedy for their case.
Legal possibility of the request: This refers to the absence of an express prohibition in law against the request made by the plaintiff in their initial petition.
3 Elements of the Action
The elements of action are: the parties, the request, and the cause of action (causa petendi).
- Parties: The subjects of the dispute, who are the subject of the action.
- Request: The specific relief sought from the court.
- Cause of action: The reasons giving rise to the claim and the desired outcome.
These elements must be present in all actions, as they serve as identifiers. Only through these elements can the judge examine issues such as lis pendens, res judicata, connection, and continence, to avoid conflicting decisions.
5 Absolute and Relative Jurisdiction
Absolute jurisdiction criteria are established based on the subject matter, the person, and the function. Absolute jurisdiction is established in the public interest and cannot be modified by the will of the parties through forum selection.
Failure to observe these rules results in the absolute nullity of the proceedings.
Relative jurisdiction, unlike absolute jurisdiction, is more flexible and considers the interests of the parties. It aims to facilitate defense, and if not challenged in a timely manner, it can be extended. This is reflected in Art. 114, CPC, which states that jurisdiction is extended if the defendant does not raise an exception to the court’s jurisdiction within the legal timeframe. The extension of jurisdiction is the mechanism by which a judge, initially lacking jurisdiction to prosecute a certain matter, becomes competent due to the defendant’s failure to challenge the jurisdiction in due course.
Relative incompetence cannot be declared by a judge ex officio, unlike absolute incompetence.
Extraordinary Legitimacy
Extraordinary legitimacy, also known as substitute process, occurs in exceptional cases expressly provided for by law or legal system, where someone is allowed to appear in court, in their own name, to defend the interests of others. An example is a condominium, where according to Article 1314 of the Civil Code, each co-owner can use the property according to its intended purpose, exercise all rights compatible with indivisible ownership, claim it from third parties, defend its possession, and transfer their ideal share or dispose of it.
Ordinary Legitimacy
The legitimacy of a party is a condition of action. As a rule, no one can go to court in their own name to defend the rights of others, under penalty of lack of action due to illegitimacy. Thus, the one who claims to be the holder of a right can go to court in their own name to postulate and defend it. This is ordinary legitimacy, where the subjects appear in court, in their own name, to litigate on their own rights.
Relationship Between Bad Faith and Attorney’s Fees
Articles 20 and its paragraphs of the CPC determine the payment of attorney’s fees in lawsuits as compensation to the winning party who paid or will pay their lawyer. This does not apply in some special proceedings, such as injunctions, tax executions, and labor proceedings. Both the Law of Tax Executions (Law 6.830/80) and the Consolidation of Labor Laws (CLT) are silent on the imposition of attorney’s fees on the losing party, leading to an interpretation that prevails in court, although it may seem unconstitutional for violating the principle of equality and Art. 133 of the Constitution.
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.