Scholars criticize rush in the analysis of the new CPC

" ENEMY OF PERFECTION

Scholars criticize rush in the analysis of the new CPC

By Rodrigo Haidar : is Legal Advisor magazine editor in Brasilia .

Counsel Magazine , July 9, 2013


A group of scholars , composed of judges, lawyers , teachers and members of the Public Ministry , launched a manifesto criticizing the haste of Congress to approve the bill creating the new Code of Civil Procedure . According to the document (read the full text below ) , the country does not need " a new CPC possible " , but a " great new CPC " .

Otherwise , the group argues , it is better to stay with the current and " his 30 years of jurisprudence ." For scholars , the most critical is that the code of 1973 , as the slowness and inefficiency of judicial decisions , are not problems caused by the civil procedural law .

" The structural and managerial weaknesses of the public service law, the excessively formalistic and litigation training of legal operators , malfunctioning of the administrative litigation , the ineffectiveness of regulatory agencies with effective powers of enforcement and punishment, among others, are causes has little to do with the civil procedural law and eventually could justify some more changes in already existing legislation , " the group contends , in the manifest .

Read the manifesto
The rush and the design of the new Code of Civil Procedure

Brazil does not need a good Code of Civil Procedure . That he already has. The CPC/73 is praised legislative instrument . And with reforms made ​​during the past 30 years , and still fulfills its role to discipline the civil procedure ( broad ) , greatest instrument of conflict .

Most of the criticisms are directed at CPC/73 ( slowness of Justice , ineffectiveness of judicial decisions etc. . ) Actually are not your problems . The structural and managerial weaknesses of the public service law, the excessively formalistic and litigation training of legal operators , malfunctioning of the administrative litigation , the ineffectiveness of regulatory agencies with effective powers of enforcement and punishment, among others, are causes little has to do with the civil procedural law and eventually could justify some more changes in already existing legislation . The distinction of time in the trial between the various federal units of the country demonstrates how the same code can be more or less effective .

But this was not understanding that prevailed within the Congress. There takes place since 2009 a bill that even sustained on purely empirical premises ( no statistic developers of these solutions ) , intends to introduce in Brazil a new Code of Civil Procedure .

If , therefore , to have a new Code of Civil Procedure , it is great , that exceed expectations , that is international model legislation , that honors the quality of Brazilian civil procedure doctrine and large Processualists we ( many of them , frize up , participants of the committees that drafted the bill or advised parliament in his review ), that the design process for electronic procedure times , and they really bring novelties able to produce results in qualitative and quantitative terms .

This new and modern procedural law , however, does not come without long and deep process of debate. This debate , it must be said , which has already begun in the academic and the National Congress , but that is not yet mature enough to justify the haste with which some charge project approval in the Senate and House of Representatives .

There was not enough time . The committee of lawyers appointed to draw up the project took only six months for the arduous task without holding public hearings to discuss a definitive text . In the Senate , even with the opening of public consultation via the web , everything happened very quickly . In the House , the processing being longer , but unfortunately due to the broad discussion of the project, but by successive exchanges rapporteur , slowing of the Congress because of the municipal elections of 2012 and discussion centered on just a few items.

Undoubtedly , the design of the new CPC , even with some evolutions and involutions from the original draft , brings great and promising news ( simplification of rites , incident repetitive demands , streamlining the appellate system etc. . ) . But it has failures ( omissions and contradictions ) that can be remedied (or lessened ) if there is further debate on the bill ( the Academy and Congress ) , preferably in the light of the final version of the House ( which, unfortunately , changes almost weekly ) .

Below , just to confirm the need to continue the debate - and without advancing critically about a range of background current version - if - point (only ) some omissions and contradictions identified in the final CCP / Camera, presented in early July 2013 ( Rep. Rapporteur Paulo Teixeira ) - text can be accessed here .

( i ) the text - despite evolving in that aspect compared to the original design - is still the paradigm case on paper , despite no longer being a reality in various courts and tribunals , the electronic file . As examples , ( a) the prediction of injury only " instrument " , ie the need for extraction of training and copies of the instrument to be distributed in court ( art. 1030 ) , ( b ) the Registrar compete to " guard the file " , which generally must " remain notarized " ( art. 152 , IV and V ) , and is the duty of patrons " to restore the file " ( art. 234 ) , ( c ) be possible for the parties to require " proof of petitions , reasonings , papers and documents that surrender notarized " ( art. 201 ) , as well as being forbidden to release" marginal or interlinear quotas , which the judge will strike " ( art. 202 ) , ( d ) the words " PO file " or " attached " ( art. 69 , II , 545 , 638 , 657, § 1 , 700 , 717 , 930 , § 1 , among others) and ( e) lack of provision of oral argument by videoconference ( art. 950 ) , practice already adopted , for example , under the TRF 's 4th District .

( ii ) exactly because of some criticism , the draft of the committee of jurists was amended in the Senate to the flexibilization of judicial procedure to be mitigated ( dilation of time and change the order of producing evidence ) . However, neither the Senate nor the House ( art. 136 , VI ) , there was concern in establishing legal criteria for the operation (properly suggested by the doctrine ) , without which there is no security and no predictability for the formal adequacy . Worse, settled the dilation of time only occurs before the start of the regular term, ignoring the vicissitudes of justificadoras cause enlargement may appear , just after the start of the period ;

( iii ) the project requires the judge to grant, deny or revoke the provisional injunction , explain the reasons for his conviction " clearly and accurately " ( art. 299 ) . The requirement has everything to become anecdotal . For no one would consider that in other judgments , the judge needed not indicate " clear and precise " mode the fundamentals that underpin his speech ;

( iv ) the project does not provide an interface between the incident and Resolution of repetitive demands collective action . If there is collective action already filed on the same issue discussed in an incident , it should also be suspended ? And if the class action is pending before the county or judicial section outside the scope of the Court or Federal Court ? Which of decisions , conflicting case, prevail? There , on the same issue , incident and collective action , there is prevention , connection , continence or prejudicial ?

( v) the design, the latest version , admits the incident resolution also demands repetitive matter of fact ( art. 988 , § 9 ) . In what situations can the court decide the incident ? You can pre- define the court that the evidence should be admitted for free conviction of the judge in the 1st instance ? Also, how compatible this incident on matter of fact with the arts . 989 , § 2 , ​​994 , and 995 § 3 ( referring only to " legal theory " , or question of law ) ? It will also be special or extraordinary appeal with suspensive effect ( Arts. 998 and 999 ) , although to revisit matters of fact ( docket 07 STJ ) ?

( vi) the coexistence of the arbitration agreement and incompetence relating to the conciliation phase were not adequately addressed . There will be a conciliation even with the relative incompetence and / or arbitration agreement ( Article 345 , § 4 ) ? The relative incompetence may be alleged in standalone application and as a preliminary to the defense (Articles 341 , 345 , and 346 § 3 , § 2 ) ? The articulation of incompetence relative term in itself is justification for opposition to the exemption from penalty for failure to attend the hearing ( Article 335 , § 8 ) ?

( vii ) the project scope was to restrict the chances of applying for interlocutory appeal to print greater celerity , but the latest version includes even situations that , in the current regime CPC/73 are considered typical for the prevailing jurisprudence hypotheses retention . Check - up , as an illustration , the case of rejection of the production of certain evidence ( art. 1028 , XIII of the project ) . This shows that the hypotheses of interlocutory appeal should be better discussed for the one- time ensuring speed without unduly restrict the means inherent in defense of the parties ;

( viii ) the conversion of individual collective action against the wishes of the author ( art. 334 ) is a solution to be carefully thought through. Does procedural publicismo justify this unconscionable burden to the author , seeing your individual claim transformed into collective , with consectários from headquarters ?

( ix ) the absence of estoppel to the issues raised in conducting the proceedings ( art. 1022 ) , which can be freely resurrected on appeal is a sensitive topic . This is because sometimes during the proceedings, the parties conform to various decisions , which , however, the failure of the claim , may be regurgitated at the stage of appeal ( despite the initial agreement). This resilience procedural issues not goes against the very idea of ​​the process of overcoming the phases and their themes ?

( x ) the end of the incidental declaratory action and the extent of the objective limits of res judicata to the question , present in the Senate version and removed the text by Sérgio Barradas , returned to the final version of Mr Paulo Teixeira ( 514 , § 1 ) . The amendment in the House occurred precisely because of criticism of the legal community ( as seen from the report itself that precedes the text , p . 282 ) , but was reversed in the final text without much public debate or justification of the rapporteur .

Brazil is going through a phase of political reform , demanding the Congress almost exclusive dedication to these themes. It is feared that , at that, not enough attention to the important project of the new CPC is given , especially since there is still much to improve .

Do not want a new CPC possible. We want a great new CPC . Otherwise , better to stay with the current and its 30 years of case law . Why then such a hurry ?

Fernando da Fonseca Gajardoni . Doctor and Master of Procedural Law, Faculty of Law, USP ( FD - USP ) . Professor of Civil Procedural Law , Faculty of Law, USP - Ribeirão Preto ( USP - FDRP ) . Judge / SP .

Andre Vasconcelos Roque . Master and PhD candidate in Procedural Law ( UERJ ) . Professor in postgraduate courses . Member of IBDP , CBAr and IAB . Lawyer / RJ .

Luiz Dellore . Doctor and Master of Procedural Law, Faculty of Law, USP ( FD - USP ) . Master in Constitutional Law ( PUC / SP ) . Professor Mackenzie Presbyterian University .

Zulmar Duarte de Oliveira Junior . Lawyer / SC . Legal Adviser to the State of Santa Catarina . Teacher. Post-Graduate in Civil Law and Civil Procedure .

Marcelo P. Machado . Master and PhD candidate in Procedural Law, Faculty of Law, USP ( FD - USP ) . Professor, Faculty of Law, Victoria ( VSF ) . Lawyer / ES .

Vitor Fonseca . Master and specializes in Civil Litigation ( PUC - SP ) . Professor of General Theory of Process . Prosecutor / AM .

Benedict Herculaneum Duarte . Doctor of Laws of social relations ( PUC - SP ) . Teacher UFRN . Judge Labor / RN .

Hairstyle Daniel Castro . PhD student and master in Civil Litigation ( FD - USP ) . Lawyer.

Andrea Caraciola . PhD in Civil Litigation ( PUC / SP ) and Master in Political Law ( Mackenzie ) . Professor at the Mackenzie Presbyterian University.

Pierre Elie Eid . Master in Civil Litigation ( FD - USP ) . Lawyer.

Lúcio Flávio Siqueira de Paiva . Master of Laws ( PUC / GO ) . Lawyer.

Marco Antonio Perez de Oliveira . Master and PhD student in Civil Litigation by the Law School of the USP ( FD - USP ) . Federal Attorney / SP .

Carlos Augusto de Assis . Doctor and Master of Procedural Law, Faculty of Law, USP ( FD - USP ) . Professor Mackenzie Presbyterian University . Lawyer.

Sérgio Luiz Salles Monteiro . PhD in Process from the University of São Paulo ( USP - FD ) and the Università di Roma . Former District Attorney and Lawyer .

Herval José Sampaio Junior . Master and PhD student in Constitutional Law , ESMARN Specialist in Civil and Criminal Procedure, and Professor of UERN . Judge / RN .

Adriano Caldeira . Master in Civil Procedural Law from PUC / SP . PhD in Political Law at Mackenzie . Professor Mackenzie Presbyterian University . Lawyer.

Augusto Rosa Tavares Marcacini . Lecturer , PhD and MSc in Civil Procedural Law at the University of São Paulo ( USP - FD ) . Professor of Civil Procedural Law and Computer Law . Lawyer.

Fernando Rubin. Process Master in the Federal University of Rio Grande do Sul ( UFRGS ) . Professor of Social Security Law and Civil Procedure . Lawyer.

Ignacio José Botelho de Mesquita . Professor of Procedural Law , and Professor Emeritus of the University of São Paulo . Lawyer " .


http://www.conjur.com.br/2013-jul-09/estudiosos-criticam-pressa-analise-codigo-processo-civil . 08/12/13