Tatiane Bagagí Faria
Lawyer at Marcos Martins Advogados
On August 27, 2021, Law No. 14,195/21 was published, which aims to facilitate the opening of companies, among other legislative changes regarding business law. In addition to the administrative changes, there was also a change in the procedural sphere, consisting of a change in the form of service, which, from now on, will preferably be made by “electronic means” within two (2) working days of the decision that ordered service, according to the new wording of article 246 of the Code of Civil Procedure.
In order to guarantee the effectiveness of the new method of service, the law stipulates that public and private companies must keep their registration data up to date with the bodies of the Judiciary, so that they can effectively receive summonses, which will preferably be made by electronic means, consisting of an e-mail address.
Now, after receiving the summons by e-mail, the party will have a period of 3 (three) working days to confirm receipt. The starting date for the deadline to lodge an objection is now the 5th working day after confirmation of receipt of the summons by electronic means.
In the event of failure to confirm receipt of the electronic summons within the stipulated period, the defendant will be notified by the means already provided for before the legislative change, i.e. by post, by bailiff, certified by the clerk in the event of the party’s appearance at the office or by public notice.
However, if the summons is effected by means other than electronic, the defendant must, at the first opportunity to appear in the case file, provide a justification for the lack of confirmation of receipt of the summons sent electronically, under penalty of such omission being considered an act against the dignity of justice, with the possibility of a fine of up to 5% of the value of the case.
This change is relevant considering the burden placed on the party to prove the reason for not confirming receipt of the summons by electronic means. Care must be taken not to impose on the defendant the obligation to prove a negative, which would be unreasonable, especially considering the vulnerabilities of electronic systems and the large number of cyber scams that we are all subject to today.
Marcos Martins Advogados is attentive to new developments in the area of procedural law, in order to provide adequate and effective advice to our clients.
