The reforms in the Code of Civil Procedure

The reforms in the Code of Civil Procedure in the quest for procedural celerity and effectiveness of legal decisions

Leandro Barata Silva Brasil*

For over a decade, the Brazilian Government, by means of its powers, has been studying different strategies to address two serious problems faced by each and every citizen who needs to resort to the courts to find a solution to his or her claims. The first of these refers to the slowness of legal procedures and the second to the disregard for the decisions or judgments rendered by courts, thus imposing fines on those who make use of subterfuges to create hindrances to delay the proper enforcement of the judicial provisions of an anticipatory or definite nature.

The aforementioned slowness is the result of the overwhelming volume of legal cases in progress in State and Federal courts combined with the large number of procedures for appeals and reviews allowed by the outdated Brazilian legal system.

The disregard for decisions is evidenced in all subterfuges and embarrassing situations created to hinder the administration of justice.

Faced with the need to modernize the Code Of Civil Procedure, a committee formed by members of the Institute of Procedural Law and the Brazilian National Judicial Institute was instated with the aim to advance legal reforms.

The said committee was coordinated by Honorable Ministers Sálvio de Figueiredo Teixeira and Athos Gusmão Carneiro and adopted the following methodology:

a) To identify the bottlenecks that hinder the administration of justice;

 

b) To adopt a pragmatic stance with due consideration for scientific rigor and previous experiences while abandoning any disagreements arising from doctrinaire or academic principles;

 

c) To submit these suggestions as several different bills rather than a single comprehensive bill in order to facilitate their progress and approval in the Congress;

 

d) To use existing provisions whenever possible;

 

e) To search for a consensus in the proposed changes and welcome to contributions to the discussion so that the final product is not an isolated claim of the Courts but a single voice representing all sectors involved, i.e. integrating courts, universities, their faculty, attorneys, judges, Public Prosecutors and Defenders.

To that effect, several sectors of the community were consulted and the resulting proposals were submitted to the Federal Government Attorney's Office, to the Inspector General of the Treasury of Brazil and to the Brazilian Bar Association. Finally, the suggestions were structured as bills that were submitted to the Congress for enactment. In the House of Representatives they were issued numbers 3474\00, 3475\00 e 3476\00 and were enacted as Acts 10352\2201, 10358\2001 and 10444\2002 on March 26, 2002, March 27, 2002 and August 07, 2002, respectively.

The main changes found in these Acts encompass the scope of appeals, of necessary judicial review and particularly of the anticipation of jurisdictional effects as well as the imposition of fines that aim to hinder the effective application of legislation.

The most important aspect of the search for the due construction of these changes is the statement that all efforts undertaken were aimed at simplifying, streamlining and making the whole set of legal proceedings more effective. This quest for effectiveness and the timely application of jurisdictional guardianship became the major goal of contemporary proceedings specialists in their search for unobstructed access to justice.

In Chiovenda'a words, all legal proceedings should provide those who are entitled to a right with all that he or she is duly entitled to within the possibilities of the Law.

However, all the changes provided by the reforms in the Code of Civil Procedure, which were the object of such careful scrutiny by the committee that prepared them, will be laid to waste if the legal profession cannot operate them effectively. The problems here envisaged will only be mitigated with the effective and appropriate use of the advances included in this reform. Such an attitude implies careful studying and constant upgrading on the part of the legal profession.

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* Brazilian lawyer at Siqueira Castro - Advogados

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