Danielle Di Marco
Lawyer at Marcos Martins Advogados
Article 80 of the Code of Civil Procedure defines a bad faith litigant as one who:
I – makes a claim or defense against an express text of the law or an incontrovertible fact;
II – alters the truth of the facts;
III – uses the process to achieve an illegal objective;
IV – opposes unjustified resistance to the progress of the case;
V – proceed in a reckless manner in any incident or act of the proceedings;
VI – cause a manifestly unfounded incident;
VII – filing an appeal with a manifestly delaying purpose.
A litigant in bad faith may be ordered to pay a fine of more than 1% (one percent) and less than 10% (ten percent) of the corrected value of the case, in accordance with article 81 of the Code of Civil Procedure.
Therefore, it is up to the lawyer to assess the appropriateness of the measure and the best way to seek out the organs of the Judiciary in favor of his client.
In this sense, the labor reform (Law 13.467/17), in the pursuit of the real truth, and in respect for the principle of procedural loyalty, was concerned with good faith, and in its articles 793-A to 793-D was similar to the Code of Civil Procedure.
In other words, the party who alters the truth of the facts is guilty of procedural bad faith. The Regional Labor Court of the 12th Region has already ruled in this regard:
BAD FAITH LITIGATION. CHARACTERIZATION. According to item II of article 80 of the CPC, a party who alters the truth of the facts is guilty of procedural bad faith. EMPLOYMENT RELATIONSHIP. PERIOD PRIOR TO REGISTRATION. The establishment of the employment relationship prior to that recorded on the CTPS requires the production of robust and unequivocal evidence regarding the provision of services. As a constitutive fact of his right, it is up to the plaintiff to prove the alleged work in a period prior to registration, in order to deconstruct the relative presumption of veracity of the annotation of the CTPS referring to the date of his admission. (TRT-12 – RO: 0004510562015xx SC 0004510-56.2015.5.12.0039, Rapporteur: ALEXANDRE LUIZ RAMOS, SECRETARIA DA 3A TURMA, Date of Publication: 29/06/2017).
The grounds of the above-mentioned judgment are clear:
Acting in such a way, the party, in addition to obstructing justice with clearly unfounded postulations, commits an act detrimental to the dignity of justice, disregarding its legal duties to expose the facts in court according to the truth and not to formulate a claim or present a defense when aware that they are groundless. In view of the above, as a pedagogical measure, I uphold the decision that sentenced the plaintiff to a fine for bad faith litigation of 3% of the value of the case. (TRT-12 – RO: 0004510562015xx SC 0004510-56.2015.5.12.0039, Rapporteur: ALEXANDRE LUIZ RAMOS, SECRETARIA DA 3A TURMA, Date of Publication: 29/06/2017).
This position on altering the truth of the facts is also linked to the false allegation of miserability, for example when the party claims the benefits of free justice, however, has full conditions to bear the costs and other procedural expenses, in which situation, in addition to the rejection of the benefit may be ordered to pay a fine for bad faith litigation.
However, the fact that the party is a beneficiary of free legal aid does not prevent them from being fined for bad faith litigation, since the allegation of a situation of hyposufficiency does not prevent the application of the consequences due in the event of a lack of good faith, which under the terms of the Code of Civil Procedure and the Labor Reform is done through a fine reversed in favor of the opposing party.
Marcos Martins Advogados is always attentive to changes in the law and to case law in labor matters, maintaining its commitment to excellence in the provision of legal services to its clients by providing appropriate responses that are perfectly in line with the current interpretation of the law.
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