Nathália Guedes Brum
Advogada do escritório Marcos Martins Advogados Associados
The current Brazilian Code of Civil Procedure was established by Law No. 5869 of January 11, 1973 and has undergone numerous modifications over the years, through amendments, which has resulted in a feeling of legal insecurity. As a result, the drafting of a new Code of Civil Procedure (CPC) became necessary, as in addition to introducing new instrumental institutes, it would put an end to the fragmentation caused by the disorderly promulgation of amendments.
In December 2014, the Senate concluded the vote on the new CPC – Senate Bill 166 of 2010, a matter that had been before Congress for more than five years. In Plenary, the Senators examined the outstanding points of the text of more than a thousand articles and now the matter goes for Presidential sanction. The new procedural rules will come into force one year after publication.
The new CPC aims to simplify and speed up the processing of civil lawsuits by reducing appeals, reducing formalities and creating a specific tool to deal with repetitive lawsuits, as well as speeding up and making civil lawsuits more transparent.
The considerations presented here seek to briefly list some of the main innovations of the rule, according to the basic text approved by the Senate.
One important innovation is the provision for a preliminary conciliation hearing. Courts will have to create judicial conciliation and mediation centers, staffed by specialized professionals, to try to reach agreements. As a result, a preliminary conciliation hearing will be held before the defendant files his response. The defendant will be summoned not to contest the case, but to attend the conciliation or mediation hearing. Only at the end of the hearing, if there has been no settlement, will the time limit for contesting the case begin.
In this way, the 15-day deadline for contesting the case has been maintained, but the starting date will be: (i) from the conciliation hearing or the last conciliation session, when either party fails to appear or, if they do, there is no self-composition; (ii) from the protocol of the request for cancellation of the conciliation hearing submitted by the defendant, when there is a case in which both parties show no interest in holding the conciliation hearing; (iii) according to the manner in which the summons was served, in other cases.
The provision for double counting of the time limit for joint litigants with different attorneys was also maintained, but the provision for a fourfold time limit for challenges by the Public Treasury and the Public Prosecutor’s Office (art. 188 of the current CPC) was extinguished, which, together with the Public Defender’s Office, will enjoy double time for their manifestations.
Deadlines will now be counted only in working days and not in calendar days, as under the current Code.
In addition, the defendant’s possible responses will be concentrated in a single petition (defence, counterclaim, objection to lack of jurisdiction, challenge to the value of the cause…), which is currently done in separate pleadings. This change favors the principle of procedural economy.
Another novelty in the Bill is the Incident of Resolution of Repetitive Demands (IRDR), created to resolve cases of multiplicity of lawsuits based on an identical question of law, standardizing case law. The IRDR follows the same procedure as repetitive special appeals, provided for in article 543-C of the CPC, but extends its scope to the Courts of Appeal.
In the draft of the new CPC, the deadlines for appeals are unified. With the exception of motions for clarification, for which the deadline remains at 05 (five) days, all other appeals can be filed within 15 (fifteen) days. The text also provides for a fine for the parties when the judge finds that the appeal is used as a way of delaying the end of the action. It removes the possibility of an interlocutory appeal for intermediate decisions (on evidence, expertise, etc.). It puts an end to the embargo infringente, in the case of a non-unanimous decision, but provides for the case to be re-evaluated by another composition.
Another important innovation in the new CPC bill is the unseizability of salaries, allowances, wages, salaries, retirement benefits, pensions, annuities, savings accounts, sums received at the discretion of a third party and intended for the support of the debtor and his family, the earnings of self-employed workers and the fees of liberal professionals, which, according to the new provision, if they exceed 50 minimum monthly salaries, can be seized.
The bill also creates restrictions on the seizure of money from companies to ensure their continued operation, limiting it to 30% of turnover, and obliges judges to listen to business owners before seizing individual assets to pay company debts arising from fraud.
These are just a few of the many innovations brought in by the new Code of Civil Procedure, but it is already possible to see that the project aims to renew and speed up the judicial process, meeting society’s desires, seeking the longed-for legal certainty, without reducing or restricting rights.
REFERENCES
BRAZIL. Law No. 5.869, of January 11, 1973. Establishes the Code of Civil Procedure. Planalto,Brasília, DF. Available at:<http://www.planalto.gov.br/ccivil_03/leis/l5869compilada.htm>. Accessed on: Feb. 16, 2015.
MENDES, Aluisio Gonçalves de Castro; ÁVILA, Henrique. Some of the Main Changes to the New Code of Civil Procedure. Consultor Jurídico: São Paulo, January 31, 2015. Available at:<http://www.conjur.com.br/2015-jan-31/algumas-principais-alteracoes-codigo-processo-civil>. Accessed on: Feb. 16, 2015.
ROVER, Tadeu. Rationality of the new CPC will speed things up. Consultor Jurídico: São Paulo, July 18, 2013. Available at:<http://www.conjur.com.br/2013-jul-18/racionalidade-cpc-dara-celeridade-tramitacao-acoes>. Accessed on: Feb. 16, 2015.
FEDERAL SENATE. Bills Nos. 6.025, of 2005, and 8.046, of 2010. Consultor Jurídico: São Paulo. Available at:<http://s.conjur.com.br/dl/redacao-final-aprovada-camara.pdf>. Accessed on: February 16, 2015.
