Understanding Civil Procedure: Applications, Process, and Jurisdiction
Types of Legal Applications
Procedural Applications
An application directed to the process is therefore governed by procedural law, which dictates the sequence of acts and the necessary steps. Examples include:
- Citation of the defendant
- Gathering evidence from case to case
- Pleading a skill
- Designating an audience
- Defining the return period
- Inclusion of witnesses
Substantive Applications
An application directed to the substance (or merits) aims to resolve the core dispute. The merit involves the assessment of the application itself. Such an application seeks to achieve a substantive outcome, thus concerning the merits of the case. It addresses the material law. Examples include:
- Sentencing the defendant
- Deconstituting a transaction
- Declaring invalidity
Formation of the Legal Process
Court Structure and Jurisdiction
In Brazil, the court structure includes the County State Court, which corresponds to Varas (Judicial Districts), and sections of the Federal Court.
The action begins after the judge’s first positive order (e.g., to cite the defendant), as per Article 263 of the CPC. However, the defendant only experiences the effects of the action after valid service, as per Article 219 of the CPC.
Conditions for Process Formation
The conditions for the formation of a legal process are:
- Demand (Application)
- Competent Court
- Valid Citation: While the prevailing view requires valid citation, exceptions are accepted where the merits can be tried without citing the defendant (Article 285 CPC), such as in cases of tutela antecipada (interlocutory injunctions), e.g., in lawsuits against health plans.
Conditions for Trial of Merits (Article 267 CPC)
The conditions for eligibility for the trial of the merits (Article 267 CPC) include:
- Terms of Action
- Procedural Constitutional Assumptions (Judicial Body + Demand + Service) and Development of a Valid and Regular Process
- Negative Assumptions
- Procedural Regularity
Developing a Valid and Regular Case
The plaintiff’s will regarding the demand is crucial for developing a valid and regular case.
- If the action is withdrawn before the defendant appears in the process, it will conclude without a resolution of the merits. After the defendant’s appearance, their agreement is required for the extinction of the process, as per Article 267, Paragraph 4.
- Unilateral early termination occurs when the plaintiff fails to perform a necessary act for the proceedings for more than 30 days.
- Bilateral early termination occurs when both the plaintiff and defendant abandon the process for more than 1 year. In both cases, the action will be dismissed without consideration of the merits.
Jurisdiction and Competence
Jurisdiction refers to the court’s authority, a delineation of the authorization granted by law to exercise judicial functions. It is traditionally conceptualized as a measure or even quantity of jurisdiction.
- Absolute incompetence regarding the subject matter, the person, or the function must be declared ex officio by the judge. The opposing party can raise this at any time and at any level of jurisdiction. Even if final, the decision may be challenged through a rescission action within 2 years. Absolute incompetence prevents the development of a valid and regular process. If the judge fails to declare absolute incompetence, and the defendant does not raise it at the first opportunity, the defendant will bear the legal costs.
- Relative incompetence arises due to the amount involved or the territorial criterion. It allows for the extension of jurisdiction if the defendant does not argue incompetence by exception within 15 days (Article 305 CPC), which would otherwise lead to the extension of jurisdiction. Relative incompetence only prevents the development of a valid and regular process if raised by the defendant. One can also argue the judge’s impartiality due to impedimento (estoppel) or suspeição (suspicion), as per Articles 134 and 135 of the Civil Code (CC).