Source: Legal Consultant - São Paulo / SP - 15/09/2010

On 09 September, Law 12.322 / 2010 was published in the Federal Official Gazette, which alters some legal provisions of the Civil Procedure Code. I offer two conclusions, the foundations of which will be developed below regarding the new legislation: it is possible to see a reasonable gain in terms of procedural savings and significant legal certainty; and the legislator missed a great opportunity to modify more than the literalness of some altered legal provisions.

The main novelty is the procedural change to the interlocutory appeal of article 544 of the CPC, which is no longer called an interlocutory appeal and is only called an interlocutory appeal. I have already had the opportunity to criticize the legislator in naming such an appeal for an interlocutory appeal:

“The legislator's unhappiness can be perceived by several aspects that differentiate the interlocutory appeal from the appeal against a denial decision to follow a special and / or extraordinary appeal: (a) the place of filing is different, considering that the appeal now analyzed is brought before the body making the contested decision; (b) the nature of the contested decision is different, the decision not admitting the special and extraordinary appeal being a final decision, which, if not challenged, ends the appeal; (c) the procedures before the competent court for the judgment of these appeals are different; (d) even though both have mandatory parts, there is a noticeable difference between them ”.

The name change, therefore, should be celebrated for the simple fact of distancing the interlocutory appeal from article 544 of the CPC from the interlocutory appeal. The legislature, however, went beyond a purely semantic change, modifying an important aspect of the appeal procedure under analysis. According to the new wording of article 544, caput, of the CPC, if a special or extraordinary appeal is not admitted, an appeal will be filed within 10 days to be filed in the main proceedings, which after observing the adversary, under the terms of the article 544, paragraph 3 of the CPC, will be forwarded to the higher court.

It means that it is no longer necessary to create new records to instrumentalize the appeal, which will exempt the lawyer from the aggravating work of instructing the appeal with a copy of procedural documents, considering that in view of the new appeal system, the higher courts will have access to the main records at the time of the appeal.

The novelty complies with the principle of procedural economics, because it dispenses the lawyer with instructions that cost money in copies, as well as dispensing with the superior courts to digitize numerous copies of pieces present in the main proceedings, as well as to control the existence or not of the pieces in concrete case. The judiciary who sees a decrease - albeit not significant - in the final cost of the process wins, and the Judiciary gains with the dismissal of merely mechanical work, directing the servants to other, more productive activities.

In addition to complying with the principle of procedural economy, the gain in terms of legal certainty is significant. How many were the complaints of article 544 of the CPC that are no longer known for formal addictions? Some of them are absolutely irrelevant and salable. Majority doctrine speaks of defensive jurisprudence, but I prefer the term "judicial terrorism" in the stance of the higher courts in terms of appeal admissibility.

With the new appeal system of the interlocutory appeal of article 544 of the CPC, the unpleasant surprises disappear in judgments of admissibility of this appeal, such as the inability of the reporting rapporteur to read a stamp given by the Judiciary Power, or the finding that a piece was missing that The court recognizes that it is not required by law, but considers it indispensable for its understanding of the claim and / or the appeal.

These are aspects that naturally enliven the legal operator, so judged lately, but the enthusiasm for the legislative change does not seem to be significant in terms of procedural speed. I disagree with those who argue that the change will shorten the duration of the process, considering that the higher courts may immediately pass judgment on the special or extraordinary appeal when granting the interlocutory appeal. In reality, this immediate judgment, even with the transformation of the interlocutory appeal into a special or extraordinary appeal, was already admitted under the terms of article 544, paragraphs 3 and 4 of the CPC, which were also modified in its wording to adapt to the new reality of remittance the main case file to the Court.

The changes in paragraphs 2, item II and 3 of article 475-O and sole paragraph of article 736, all of the CPC, are only intended to adapt the provisions to the new reality created by the new appeal system inaugurated by the new wording of art. 544 of the CPC. In this regard, the legislator missed two great opportunities to improve the aforementioned legal norms.

Article 475-O, paragraph 2, item II, of the CPC, provides for one of the hypotheses of waiving the security deposit in the provisional execution, when considering the high probability of the sentence being confirmed definitively. Therefore, pending the interlocutory appeal (the legislator only excluded the term "instrument") against a denial decision to follow up on a special and / or extraordinary appeal, the security deposit will be waived. Although it is possible to reform or annul the decision, the legislator understood that the chances of this occurring are small, so it is worth taking the risk of waiving the bond. It happens, however, that the risk to be assumed will depend on the specific case, and it is appropriate to provide the security whenever the defendant makes such a request and demonstrates that the waiver can manifestly result in a risk of serious damage, difficult or uncertain repair.

I have already had the opportunity to critically analyze this legal provision:

“There are two possible criticisms of the legal provision: (a) the legislator only takes into account the danger caused by the dismissal, with no requirement that the right alleged by the defendant in the appeal pending judgment is probable, assuming the provision of security deposit even in flagrantly delaying appeal, contrary to the consolidated and even summarized understanding of the higher courts; (b) a hypothesis for an interlocutory decision is created that will certainly give rise to the filing of an interlocutory appeal, a resource as well remembered as the great villain of the paralysis of some high-level courts ”.

It is regrettable, therefore, that the legislator did not take advantage of the change of the legal provision to correct the distortion present in the first criticism presented, starting to demand also for the provision of the guarantee the reasonable probability that the aggravating agent will succeed in his appeal.

Article 475-O, item 3, of the CPC, made express mention of Article 544 of the CPC, which required its reformulation. Naturally, the lawyer instructing the sentence letter to initiate provisional execution could no longer be charged with the same stance charged to the lawyer who filed the interlocutory appeal under Article 544 of the CPC, as from now on there is no further instruction on this appeal. The legislature, however, maintained the useless formal requirement of the lawyer to declare copies of the authentic pieces. It is evident that the lawyer 's declaration does not have the capacity to make a false piece authentic, just as the absence of such a declaration will not make a false piece authentic. On the other hand, the responsibility - criminal, civil, administrative - for the collection of counterfeit pieces will exist regardless of whether the lawyer has declared its authenticity. Even though there are decisions dispensing with the lawyers' declaration of authenticity, the legislator missed a great opportunity to remove the useless requirement of the aforementioned legal provision.

The same criticism elaborated for the timidity of the change in article 475-O, item 3 of the CPC applies to the change in article 736, sole paragraph, of the CPC, which deals with the instruction of the embargoes to execution, since the useless formal requirement of declaration of authenticity by the lawyer of the pieces that instruct his typical defense in the execution process.