Civil procedure in Brazil consists of the rules of

civil procedure Civil procedure is the body of law that sets out the rules and standards that courts follow when adjudicating civil lawsuits (as opposed to procedures in criminal law matters). These rules govern how a lawsuit or case may be commenced; what ki ...

detailed in the Civil Procedure Code ( pt, Código de Processo Civil, commonly referred to as CPC), which has been approved in March, 2015, and being in application since March, 2016, in substitution to the old code from 1973. As a civil law system, it is heavily influenced by

Roman Roman or Romans most often refers to: *Rome, the capital city of Italy *Ancient Rome, Roman civilization from 8th century BC to 5th century AD * Roman people, the people of ancient Rome *'' Epistle to the Romans'', shortened to ''Romans'', a lett ...

and

German German(s) may refer to: * Germany (of or related to) **Germania (historical use) * Germans, citizens of Germany, people of German ancestry, or native speakers of the German language ** For citizens of Germany, see also German nationality law **Ger ...

concepts of civil procedure. In Brazil, civil procedure regulates the hearings of conflicts based in various sectors of law, such as private law, social law, and

public law Public law is the part of law that governs relations between legal persons and a government, between different institutions within a State (polity), state, between Separation of powers, different branches of governments, as well as relationship ...

History

The Philippine Ordinances

The early origins of Brazilian civil procedure can be found in the Portuguese Philippine Ordinances (''Ordenações Filipinas''), which were prepared during the reign of Philip I of Portugal in 1595, but not promulgated until the reign of Philip II in 1603. These ordinances were applied to

Colonial Brazil Colonial Brazil ( pt, Brasil Colonial) comprises the period from 1500, with the arrival of the Portuguese, until 1815, when Brazil was elevated to a kingdom in union with Portugal as the United Kingdom of Portugal, Brazil and the Algarves. D ...

and continued to be in force in the country after its independence from Portugal in 1822. Book III of the Ordinances contained basic rules for bringing an issue before a court, such as requiring the complaint to be written and authorizing "secret acts" where both the

plaintiff A plaintiff ( Π in legal shorthand) is the party who initiates a lawsuit (also known as an ''action'') before a court. By doing so, the plaintiff seeks a legal remedy. If this search is successful, the court will issue judgment in favor of the ...

and

defendant In court proceedings, a defendant is a person or object who is the party either accused of committing a crime in criminal prosecution or against whom some type of civil relief is being sought in a civil case. Terminology varies from one juris ...

were barred from participating (parties did not participate in the examination of witnesses, for example).Theodoro Jr., Humberto. Curso de Direito Processual Civil. 38th ed. Vol. 1. Rio De Janeiro: Editora Forense, 2002. Print. These procedures were heavily influenced by

and

canon law Canon law (from grc, κανών, , a 'straight measuring rod, ruler') is a set of ordinances and regulations made by ecclesiastical authority (church leadership) for the government of a Christian organization or church and its members. It is th ...

, signaling Brazil´s long-standing preference for civil law systems. The Philippine Ordinances remained valid in Brazil for centuries, and even with the publishing of the 1850 Commercial Code, civil cases continued to follow the rules of procedure delineated by the ordinances. With the 1891

Constitution A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of entity and commonly determine how that entity is to be governed. When these princip ...

, states were authorized to create their own rules for

. Most continued to embrace the Roman influences of the previous system. Most states also failed to properly revitalize and modernize the process. This failure influenced the 1934

to grant authority over the civil procedure to the

Brazilian Federal Government The Federal Government of Brazil (''Governo Federal'') is the national government of the Federative Republic of Brazil, a republic in South America divided in 26 states and a federal district. The Brazilian federal government is divided in thre ...

The 1939 Civil Procedure Code

The 1939 Code of Civil Procedure ( Portuguese:''Código de Processo Civil'') was a direct result of the 1934

. The 1939 code was viewed as an improvement, as it introduced oral proceedings, concentrated proceedings, and authorized the judge to play a greater role. However, Brazilian legal scholar Sérgio Bermudes observed that the code represented the uncomfortable coexistence of two different influences: "a generalized modern element, heavily inspired by

, Austrian and Portuguese law, as well as the work of legislative review of Italy; and a specialized anachronistic element, sometimes too faithful to the old Lusitanian process, sometimes completely unsystematic."

The 1973 Civil Procedure Code

After a decade of observation and debate, the

Federal Government A federation (also known as a federal state) is a political entity characterized by a union of partially self-governing provinces, states, or other regions under a central federal government (federalism). In a federation, the self-govern ...

authorized a major reform to the 1939 Code of Civil Procedure that ran from 1969 until 1972. The new code was drafted by law scholar Alfredo Buzaid, who would later serve as a judge on the Brazilian Federal Supreme Court, and was reviewed by a commission consisting of judges José Frederico Marques, Luiz Machado Guimarães, and Luíz Antônio de Andrade. The new ''Código de Processo Civil'' (CPC), which became law in 1973, aimed to hasten the

litigation - A lawsuit is a proceeding by a party or parties against another in the civil court of law. The archaic term "suit in law" is found in only a small number of laws still in effect today. The term "lawsuit" is used in reference to a civil actio ...

process, move away from an over-reliance on written documents and pleadings, and broaden the powers of the judge. After 37 years and 65 amendments since its ratification, it was entirely substituted for a new code in 2015.{{Cite web, url=http://www.planalto.gov.br/ccivil_03/_Ato2015-2018/2015/Lei/L13105.htm, website=www.planalto.gov.br, access-date=2019-05-02, title=L13105

Types of processes

The 1973 CPC recognizes three different types of processes:

cognitive Cognition refers to "the mental action or process of acquiring knowledge and understanding through thought, experience, and the senses". It encompasses all aspects of intellectual functions and processes such as: perception, attention, thought ...

(''cognição''),

executor An executor is someone who is responsible for executing, or following through on, an assigned task or duty. The feminine form, executrix, may sometimes be used. Overview An executor is a legal term referring to a person named by the maker of a ...

y (''execução''), and provisional (''cautelar''). The attention given to the latter two is relatively minor, as executory processes merely deal with the enforcement of a right or entitlement previously (and specifically) declared by law, and provisional processes are a procedural function provided by the CPC to maintain equilibrium between the

and

during

. Thus, the majority of the CPC focuses on cognitive processes. These processes deal with contested claims where there is a need to define the concrete will of the law. Accordingly, cognition processes should culminate in a sentence based upon the merits of the case, and provide a definitive answer to the initial complaint filed by the plaintiff. Among cognitive processes, the CPC makes a further distinction between those of special procedure (''procedimento especial'') and common procedure (''procedimento comum''). Special procedure is reserved by certain issues or disputes by Book IV of the CPC and other statutes, notably the special courts (''juizados especiais)'' found in law no. 9,099. These special procedures tend to focus on issues of minor complexity, and can be properly characterized as “highly summarized proceedings.” Additionally, common cognitive procedures themselves can be broken into two categories: those that receive the full, traditional treatment from the

legal system The contemporary national legal systems are generally based on one of four basic systems: civil law, common law, statutory law, religious law or combinations of these. However, the legal system of each country is shaped by its unique history an ...

(''procedimento comum ordinário'') and those that receive

summary proceedings A summary offence or petty offence is a violation in some common law jurisdictions that can be proceeded against summarily, without the right to a jury trial and/or indictment (required for an indictable offence). Canada In Canada, summary offenc ...

(''procedimento sumário''). Summary proceedings are entirely abridged from beginning to end (as opposed to a conclusion reached early in the process of traditional procedure, as with summary judgment). Summary proceedings in

Brazilian law The law of Brazil is based on statutes and, partly and more recently, a mechanism called ''súmulas vinculantes''. It derives mainly from the civil law systems of European countries, particularly Portugal, the Napoleonic Code and the Germanic la ...

are triggered primarily by factors that deal with the inherent subject matter of their corresponding litigation, such as low-cost disputes or minor damages from automobile accidents. Thus, a fully litigated, non-summarized case will receive common ordinary procedure (''procedimento comum ordinário'').

Stages of process

The common ordinary procedure is often broken down into four phases: a pleading stage (''fase postulatória''), a conclusive opening order (''despacho saneador''), an evidentiary stage (''fase probatória''), and a decision-making stage.

Pleading stage

A plaintiff begins the civil process by submitting a complaint, referred to as an initial

petition A petition is a request to do something, most commonly addressed to a government official or public entity. Petitions to a deity are a form of prayer called supplication. In the colloquial sense, a petition is a document addressed to some offic ...

(''petição initial''). The initial petition must include the name of the judge or

court A court is any person or institution, often as a government institution, with the authority to Adjudication, adjudicate legal disputes between Party (law), parties and carry out the administration of justice in Civil law (common law), civil, C ...

to which it is addressed, as well the names and additional identifiers of the

and

. Traditionally, it then is separated into three parts: statement of facts (a recital of the events that occurred that provoked the petition), considerations of law (a collection of statutes and legal authorities supporting the position of the plaintiff), and a request for relief (where the desired legal action to be taken by the court is specified by the plaintiff). The initial petition must also include a specification of what evidence the plaintiff intends to prove his

allegation In law, an allegation is a claim of an unproven fact by a party in a pleading, charge, or defense. Until they can be proved, allegations remain merely assertions.

s, and all documents supporting the alleged facts. The petition is then given to the judge, who may either reject it (the rejection can be appealed, however), request modifications, or accept is as it is. Upon acceptance, the defendant usually has 15 days to offer his answer, under penalty of default. The defendant can answer the initial petition with one of three different responses: a tradition answer (''contestação''), a

counterclaim In a court of law, a party's claim is a counterclaim if one party asserts claims in response to the claims of another. In other words, if a plaintiff initiates a lawsuit and a defendant responds to the lawsuit with claims of their own against th ...

(''recovenção'') or an exception (''exceção''). The ''contestação'' acts as an inverse of the initial petition: it includes the defendant´s own factual allegations and legal citations that contend against the plaintiff's charges, as well as supporting documentation and evidence. A failure to allege certain arguments results in a forfeiture of those positions. A counterclaim, where the defendant asserts his own complaint against the defendant, must be based upon the controversy in question or arise from a defense to the complaint. An exception is an assertion that attempts to end the litigation before it arrives to a judgment upon the merits (such as lack of

jurisdiction Jurisdiction (from Latin 'law' + 'declaration') is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, areas of jurisdiction apply to local, state, and federal levels. Ju ...

Conclusive opening order

After the judge has reviewed the initial petition and the answer, the judge and parties meet to reduce the focus of the litigation to the issues in contention. If the review produces the realization that there are no disputed facts and that the issue of contention is a matter of law, he may offer summary judgment before the trial. If not, the conclusive opening order verifies that the issue of contention is deserving of an answer based upon the merits of the case, and defines what issues will be brought before the court.Rosenn, Keith S. "Civil Procedure in Brazil", ''The American Journal of Comparative Law'' 34.3 (1986): 487-525. JSTOR. Web. 8 July 2010.

Evidentiary stage

During the evidentiary stage, the judge is presented with the

evidence Evidence for a proposition is what supports this proposition. It is usually understood as an indication that the supported proposition is true. What role evidence plays and how it is conceived varies from field to field. In epistemology, eviden ...

that will inform his final decision. Evidence is gathered over a prolonged period of time, often enduring several months. Oral testimonies of parties other than the plaintiff and defendant are heard outside of court, with the judge acting as the examiner. The judge receives, prior to the questioning period, a series of questions from both sides of the

, and asks the questions in their stead. Upon conclusion of the testimony, the opposing side may submit a series of "

cross-examination In law, cross-examination is the interrogation of a witness called by one's opponent. It is preceded by direct examination (in Ireland, the United Kingdom, Australia, Canada, South Africa, India and Pakistan known as examination-in-chief) an ...

" questions in order to clarify elements of the witness's testimony. Expert witnesses are also permitted, although the judge generally consults an additional expert witness of his choosing. Requests for documents and other evidence to be produced by the opposing party may be submitted to the court; however, these requests must be fairly specific in what they wish to produce.

Decision-making phase

Upon conclusion of the evidentiary stage, the court is brought to trial (''audiência''). The initial purpose of the

trial In law, a trial is a coming together of parties to a dispute, to present information (in the form of evidence) in a tribunal, a formal setting with the authority to adjudicate claims or disputes. One form of tribunal is a court. The tribun ...

is to make one final attempt to resolve the case between the parties. Should the two parties fail to reach an agreement, the trial proceeds until the judge enters a decision based upon the merits. While the judge is permitted to evaluate evidence freely, he is required to decide in accordance with the common rules of experience, written law of the land and knowledge of former decisions (a tendency that is approaching Brazilian

law to

English Common Law English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law, each branch having its own courts and procedures. Principal elements of English law Although the common law has, historically, bee ...

) and must express his conclusion in a formal sentence, where the decision is expressed and then published in

government A government is the system or group of people governing an organized community, generally a state. In the case of its broad associative definition, government normally consists of legislature, executive, and judiciary. Government ...

kept diaries (''diários oficiais''), similar to

newspaper A newspaper is a periodical publication containing written information about current events and is often typed in black ink with a white or gray background. Newspapers can cover a wide variety of fields such as politics, business, sport ...

s. A judgment supposedly is offered within 10 days after the final hearing, but often it takes a longer lapse of time to reach a final decision, due to the large number of civil actions at trial in Brazil.

References

Codes of civil procedure Law of Brazil