Civil Justice in Brazil

AuthorT. A.A. Wambier - C. S. Bueno
PositionCatholic University of São Paulo (São Paulo, Brazil)
Pages6-40
BRICS LAW JOURNAL Volume III (2016) Issue 4
ARTICLES
CIVIL JuSTICE In BRaZIL
TERESA ARRUDA ALVIM WAMBIER,
Catholic University of São Paulo (São Paulo, Brazil)
CASSIO SCARPINELLA BUENO,
Catholic University of São Paulo (São Paulo, Brazil)
DOI: 10.21684/2412-2343-2016-3-4-6-40
This study deals in a succinct way with the Brazilian model of civil procedural law. There
is an historical approach specically about Portuguese law which was in force in Brazil
at the beginning (until 1832), after what there comes a brief description of the judiciary
structure (courts and judges) and only then we talk about the scope of civil procedure,
its fundamental principles and, in a “law in practice” approach, access to justice. The
role of a judge towards deciding “according to statutes and evidence” is analysed and
the current impor tance of case law is deeply focused, main ly according to the new
CPC (in force since 2015) and so are appellate proceedings, class actions, enforcement
proceedings and ADR. The last items concern the role and the importance of academia,
and some interesting cultural observations, where we deal with the very serious crisis,
both ethical and economic, that Brazil is living now, in the political sphere. The judiciary
branch is now our only hope.
Keywords: Brazilian civil procedural law; case law; role of the judiciary; crisis; trust on
the judiciary branch.
Recommended citation: Teresa Arruda Alvim Wambier & Cassio Scarpinella Bueno,
Civil Justice in Brazil, 3(4) BRICS Law Journal 6–40 (2016).
TERESA ARRUDA ALVIM WAMBIER, CASSIO SCARPINELLA BUENO 7
Table of Contents
Introduction
1. Brief History
2. Courts and Judges
3. Scope of Civil Procedure
4. Structure (Stages) of Civil Procedure
5. Fundamental Principles
6. Access to Justice
7. Forms of Actions
8. Jurisdictions
9. Role of the Judge
10. Evidence
11. Summary Proceedings
12. Appellate Proceedings
13. Class Actions
14. Costs and Funding
15. Enforcement Proceedings
16. Arbitration and ADR
17. The Role of Academia
18. Statistics
19. Comparative Observations
20. Cultural Observations
21. International Matters and BRICS Cooperation
in Civil Procedure Perspectives
Conclusion
Introduction
This study aims to lay out, in a succinct and didactic manner, the Brazilian model
of civil procedural law for jurists specialised in procedural law and other interested
parties from abroad.
After a brief review of its history, Brazilian civil procedural law is presented
against the backdrop of the Federal Constitution of 1988 and the recent Code of
Civil Procedure, Act of Law no. 13.1015, of 16 March 2015, giving special emphasis
to the most important novelties introduced by the new code, which came into eect
in March 2016.
BRICS LAW JOURNAL Volume III (2016) Issue 4 8
1. Brief History
In the period prior to Brazil’s Independence (7th September 1822), Portuguese civil
procedure laws, held in the Ordenações Afonsinas (laws passed under King Afonso V)
of 1456, Manuelinas (under King Manuel I) of 1521 and Filipinas (under King Philip II)
of 1603, were in force.
After independence, the Ordenações Filipinas remained in eect by Decree of
20 October 1823 of the Constitutional Convention, until such a time as Brazilian
laws dealt with the subject. The rst genuinely Brazilian legislation on procedural
law, according with the teachings of Moacir Lobo da Costa,1 can be found in Act of
Law of 29 November 1832, the Criminal Procedure Code, whose “Interim provision
on the administration of civil justice,” an independent part, has 27 articles.
In 1850, still at the time of the Brazilian Empire, Rule no. 737 was drafted and was
what we would now call the “Commercial Procedure Code,” basically dealing with the
regulation of judicial action in disputes arising from the application of the Commercial
Code, Act of Law no. 556, of 25 June 1850, which had just been enacted, regulating
Art. 27 of the latter. For disputes of a civil nature, that is, not commercial, the Portuguese
laws were kept, with the amendments implemented by the aforementioned Interim
Provision of the Criminal Procedure Code of 1832 and by a series of laws that have
been drafted, since then, dealing with specic topics, that resulted in the drafting of
a veritable compilation of civil procedural laws, initiated by virtue of the provisions
of Art. 29, § 14, of Law no. 2.033, of 1871, by Councilman Antonio Joaquim Ribas.
It is called Consolidação Ribas (Ribas Consolidation), which by virtue of the Imperial
Resolution of 28 December 1876, ended up becoming obligatory.
Upon the Proclamation of the Republic, on 15 November 1889, Decree no. 763/
1890 was drafted extending the rules of Regulation no. 737/1850 to disputes of
a civil nature. In 1898, with the enactment of Decree no. 3.084, of 5 November,
the “Consolidation of laws relative to Federal Justice” was approved, taking into
account the provisions of Decree no. 848, of 11 O ctober 1890, and of Law no. 221,
of 20 November 1894. It was thus that a “Federal Justice” was established and
consolidated, as well as a specic procedure for cases of interest to the Federal
Government, which is explained by the unequivocal influence that the North
American government exerted on the founders of the federative republic of Brazil
at that historic moment.
The Republican Constitution of 1891, in Arts. 62 and 65, distinguished “federal
justice” from “state justice” once and for all – which prevails until today – allowing
the member States to legislate on the civil procedure laws that govern the actions
of their own judicial bodies (Arts. 34, n. 23, and 65, n. 2). The aforementioned Decree
1 Moac yr Lobo da Costa, Breve notícia histórica do direito processual civil brasileiro e de sua literatura 5
(São Paulo: Revista dos Tribunais, 1970).

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