Civil procedure in Brazil consists of the rules of

civil procedure Civil procedure is the body of law that sets out the rules and regulations along with some standards that courts follow when adjudicating civil lawsuits (as opposed to procedures in criminal law matters). These rules govern how a lawsuit or ca ...

detailed in the Civil Procedure Code (, 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 Civil law is a legal system rooted in the Roman Empire and was comprehensively codified and disseminated starting in the 19th century, most notably with France's Napoleonic Code (1804) and Germany's (1900). Unlike common law systems, which rel ...

, 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 Roman civilization *Epistle to the Romans, shortened to Romans, a letter w ...

and

German German(s) may refer to: * Germany, the country of the Germans and German things **Germania (Roman era) * Germans, citizens of Germany, people of German ancestry, or native speakers of the German language ** For citizenship in Germany, see also Ge ...

concepts of civil procedure. In Brazil, civil procedure regulates the hearings of conflicts based in various sectors of

law Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior, with its precise definition a matter of longstanding debate. It has been variously described as a science and as the ar ...

, such as

private law Private law is that part of a legal system that governs interactions between individual persons. It is distinguished from public law, which deals with relationships between both natural and artificial persons (i.e., organizations) and the st ...

social law Social law is an unified concept of law, which replaces the classical division of public law and private law. The term has both been used to mean fields of law that fall between "core" private and public subjects, such as corporate law, competition ...

, and

public law Public law is the part of law that governs relations and affairs between legal persons and a government, between different institutions within a state, between different branches of governments, as well as relationships between persons that ...

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 (), sometimes referred to as Portuguese America, comprises the period from 1500, with the Discovery of Brazil, arrival of the Portuguese, until 1815, when Brazil was elevated to a United Kingdom of Portugal, Brazil and the Algarves ...

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 , , a 'straight measuring rod, ruler') is a set of ordinances and regulations made by ecclesiastical jurisdiction, ecclesiastical authority (church leadership) for the government of a Christian organization or church and its membe ...

, 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, organization or other type of entity, and commonly determines how that entity is to be governed. When these pri ...

, 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 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 Portuguese may refer to: * anything of, from, or related to the country and nation of Portugal ** Portuguese cuisine, traditional foods ** Portuguese language, a Romance language *** Portuguese dialects, variants of the Portuguese language ** Po ...

, 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 called a federal state) is an entity characterized by a political union, union of partially federated state, self-governing provinces, states, or other regions under a #Federal governments, federal government (federalism) ...

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 one or more parties (the plaintiff or claimant) against one or more parties (the defendant) in a civil court of law. The archaic term "suit in law" is found in only a small number of laws still in effect today. ...

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 is 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, is sometimes used. Executor of will An executor is a legal term referring to a person named by the maker o ...

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 Cognition is 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, ima ...

. 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 A legal system is a set of legal norms and institutions and processes by which those norms are applied, often within a particular jurisdiction or community. It may also be referred to as a legal order. The comparative study of legal systems is th ...

(''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 offe ...

(''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 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 an officia ...

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

judge A judge is a person who wiktionary:preside, presides over court proceedings, either alone or as a part of a judicial panel. In an adversarial system, the judge hears all the witnesses and any other Evidence (law), evidence presented by the barris ...

court A court is an institution, often a government entity, with the authority to adjudicate legal disputes between Party (law), parties and Administration of justice, administer justice in Civil law (common law), civil, Criminal law, criminal, an ...

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

statute A statute is a law or formal written enactment of a legislature. Statutes typically declare, command or prohibit something. Statutes are distinguished from court law and unwritten law (also known as common law) in that they are the expressed wil ...

s 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. Types of allegations Marital allegations There are also marital allegations: m ...

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

appeal In law, an appeal is the process in which Legal case, cases are reviewed by a higher authority, where parties request a formal change to an official decision. Appeals function both as a process for error correction as well as a process of cla ...

ed, 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 t ...

(''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' and 'speech' or 'declaration') is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, the concept of jurisdiction applies at multiple level ...

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 the proposition. It is usually understood as an indication that the proposition is truth, true. The exact definition and role of evidence vary across different fields. In epistemology, evidence is what J ...

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 by one's opponent. It is preceded by direct examination (known as examination-in-chief in Law of the Republic of Ireland, Ireland, the Law of the United Kingdom, United Kingdom, Austra ...

" 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 tribunal, w ...

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. The judiciary is independent, and legal principles like fairness, equality bef ...

) 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 (polity), state. In the case of its broad associative definition, government normally consists of legislature, executive (government), execu ...

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

newspaper A newspaper is a Periodical literature, periodical publication containing written News, 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 poli ...

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