Source: Legal Consultant - São Paulo / SP - ARTICLES - 10/06/2010

The last decade has been a virtuous one for the Brazilian justice system. Numerous advances flourished in civil society and sensitized the Legislative Branch, arousing in our people the just expectation that better days would come in the field of the effectiveness of rights. Auspicious news emerged on both the constitutional and the infra-constitutional level. The Judiciary Reform (Constitutional Amendment 45/2004) triggered the irreversible movement to improve national institutions and legislation.

The data collected and systematized by the National Council of Justice (CNJ) gave a scientific basis to the empirical perception that the Brazilian Justice needs to improve, a lot. Undoubtedly, more human and financial resources are needed for the Judiciary, but that is not all. The profile of the demands that overwhelm our courts reveals that, without creative and bold solutions in the normative plan, we will need a country of judges to complete the grand mission of judging 70 million cases (with the respective embargoes, appeals, appeals, etc.) every year.

Aware of this challenge, the President of the National Congress, Senator José Sarney, at the end of 2009 (five years after he himself promulgated EC 45/2004), instituted a Committee of Jurists designed to prepare a Draft New Code of Civil Procedure , with the confessed mission of building a procedural system in line with the needs of the Brazilian people, adhering to the fundamental rights guaranteed by the Constitution, and guaranteeing legal security and our economic and social development.

The Commission, made up of eleven specialists under the leadership of Minister Luiz Fux, of the Superior Court of Justice, concluded its work on June 1 last, drafting a draft that, when approved by the National Congress, will give a new aspect to the judicial processes. Simplicity, promptness and rationality will be the keywords of the New Code.

The Commission understood that, the more complex the procedural system, the greater the chances of side discussions, which quarrel over the essential: to answer the question “who is right in the dispute?”. Thus, the reduction of formalities and so-called procedural incidents, by eliminating a significant number of unnecessary acts practiced in the process, sought to put an end to what the CNJ identified as one of the greatest villains of the judicial system: the “notary terms”, that is, the time it takes to gather petitions, issue letters and permits, publish orders, etc.

The Commission understood more: it is necessary that the courts, notably the superiors, effectively exercise their true role in guiding the decisions of the lower judges and social life. Therefore, it is necessary to have stability of the jurisprudence, avoiding comings and goings that, on the one hand, lead to the discredit of the Judiciary and, on the other hand, sharpen the demand and impetus of people and companies, who see in the divergence jurisprudential an open door for the prevalence of their theses, even though they presume they have no reason.

In terms of rationality, it was sought to give concreteness to the obvious: just as retail solutions cannot be given to wholesale problems, neither is it possible to resolve individually and handicapped identical conflicts that are repeated in thousands or millions of lawsuits brought to justice. The solution was to design a special trial procedure for so-called repetitive cases. A formula capable of providing a homogeneous solution to all the identical processes that are pending in the country, relieving the courts and courts, which will allow the judges to spend their time on cases that truly require a more specific look.

The preliminary project sought to strike a balance between safety and speed. In the name of this, some resources that did not even contribute to that, such as the infringing embargoes, were eliminated. Conciliation was chosen as a quick and inexpensive way of resolving disputes, and financial sanctions for those who opt for the judicial adventure were tightened simply because the interest in the process is lower than that of the bank. These and many other innovations undoubtedly have the potential to change the citizen's relationship with Justice.

The Judiciary Reform launched hope in 2004. The preliminary draft of the new Code of Civil Procedure, in 2010, materializes the understanding that bold and creative legislative solutions are indispensable for the continuity of advances. Now, it will be up to the two Houses of the National Congress to evaluate the size and pace of the steps that Brazil wants to take.