Within the context of Brazilian civil procedure, independent actions for challenging decisions play a significant role in the appeals system, as they represent procedural mechanisms aimed at reviewing judicial decisions outside of the traditional appeals process. 

Unlike traditional appeals, which are filed within the same proceeding in which the challenged decision was issued, independent appeal actions are filed in separate proceedings, with procedural and instrumental autonomy.

These instruments are essential to guarantee the right to a fair hearing, the right to a full defense, and the legality of judicial decisions, especially when these decisions are flawed by nullity or affect the rights of third parties who did not participate in the original proceedings. 

However, it is important to highlight the legal nature of this procedural institution and analyze the doctrine on the subject.

What are independent challenge actions?

Autonomous legal actions, which cannot be equated or confused with appeals due to the specificities and particularities of the latter, are means of challenging specific judicial pronouncements.

According to the model outlined by Pedro Miranda de Oliveira, challenges to decisions, unlike appeals, are carried out in an autonomous process, that is, different from the one from which the challenged decision originates.

Some legal scholars argue that, despite the lack of appeal, any potential harm should be addressed through a separate legal action.

It is important to highlight that one of the main distinctions, even used strategically within a process, concerns the formation of res judicata. Professor Araken de Assis states that "(i)n such cases, therefore, we are not dealing with appeals in the proper sense of the word in procedural law. And the appeal, as seen, prevents the formation of res judicata."

Autonomous actions of challenge arise from 3 (three) main reasons: (i) absence of appeal, (ii) inefficiency of the appeal or (iii) parity with the appeal.

In the first option, we can clearly observe this phenomenon in relation to the rescissory action. Once a certain decision has become final, its content can only be reformed through a rescissory action, which is not an appeal, but has the effective purpose of challenging the judicial act.

In the second option, the independent action aims to prevent the harmful results caused by the judicial act from manifesting or perpetuating because the appeal is not capable of doing so. 

By way of example, we can list the use of a writ of mandamus as a tool to challenge an interlocutory decision whose merits are not included in the list of Article 1.015 of the Code of Civil Procedure. This strategy is used for several reasons, the first being the possibility of a more restrictive analysis of the admissibility of the appeal. The second is the priority given to mandamus proceedings in the order of judgment by the courts. Finally, the third reason is the absence of a need for further evidence.

Finally, in cases of equal appeals, we have a concurrence of the independent action with the appeal itself. As an example, we can cite a constitutional claim filed simultaneously with the filing of an extraordinary appeal, even if in separate proceedings.

This blog has already addressed this topic, where we stated that " Complaints are not intended to be simple substitutes for ordinary or extraordinary appeals; they are accepted with the aim of preserving the authority of judgments made with general repercussions ."

In the realm of civil procedure, case law also recognizes the possibility of using an independent action, even if an appeal has been filed, to challenge a decision ordering the imprisonment of a debtor for alimony. 

CHARACTERISTICS OF THE MAIN AUTONOMOUS ACTIONS

Among the main autonomous legal actions provided for in the Brazilian legal system, the following stand out: the constitutional claim, the rescissory action, third-party opposition, the querela nullitatis, and the annulment action.

The constitutional claim stems from the role of the Supreme Court exercised by the Supreme Federal Court, whose essential function is to promote the unity of law through the fair interpretation of the legal order, using the judgment of the specific case only as a means to establish precedents. This practice allows a judge from another court to base their decision on an interpretation given to a legal provision already analyzed previously, instead of following new and perhaps dangerous legal interpretations.

To avoid reiterating what has already been discussed on this blog, I suggest reading my article entitled " When is a Constitutional Claim Appropriate before the Supreme Federal Court? "

Regarding the rescissory action, provided for in articles 966 to 975 of the Code of Civil Procedure (CPC), it is one of the best-known forms of autonomous challenge. Its purpose is to overturn a final judgment on the merits when the hypotheses expressly provided for by law are present, such as: manifest violation of the legal norm, error of fact, false evidence, or fraud by the winning party. 

Because it is an exceptional measure that undermines legal certainty, a rescissory action must adhere to strict deadlines and requirements, including being judged by a collegiate body with original jurisdiction.

Another independent legal action for challenging a decision is the third-party claim (articles 674 to 681 of the CPC). This measure protects someone who, not being a party to the proceedings, sees their property affected by a judicial seizure (attachment, garnishment, or sequestration).

This is the case, for example, of a third party who possesses or owns property that has been wrongly seized in execution proceedings against another party. This action is an effective way to safeguard the property rights of third parties who are not parties to the original lawsuit.

The action for annulment (querela nullitatis) is also among the autonomous actions for challenging a judgment, although it is only applied in exceptional situations. It is an action aimed at overturning an absolutely null judgment, even after it has become final, when an essential procedural requirement, such as valid service of process, is absent. Unlike a rescissory action, it is not subject to the same deadlines and requirements, as it deals with absolute nullity.

An annulment action aims to invalidate procedural or extra-procedural acts flawed by relative nullities, such as defects in the formation of a contract or in an administrative decision that has repercussions in judicial proceedings. It is widely used in the fields of public law and business law.

These actions, by their nature and purpose, require differentiated treatment from a procedural standpoint, since they affect res judicata, the rights of third parties, and the stability of judicial decisions. 

Therefore, the CPC imposes specific conditions for its filing, such as restricted standing to sue, limitation periods (in the case of rescission) and well-defined substantive requirements.

CONCLUSION

In common, all autonomous actions of challenge stem from the need to guarantee a balance between two fundamental principles of civil procedure: legal certainty and substantive justice. While legal certainty ensures the stability of decisions, substantive justice allows illegitimate or null judgments to be reviewed, even after they have become final.

A thorough understanding of independent legal challenges is essential for those involved in litigation, especially in complex matters where the control of the legality and validity of judicial decisions is crucial. They represent the ultimate remedy against serious errors by the Judiciary and must be handled with technical and strategic responsibility.

BIBLIOGRAPHIC REFERENCES

ARAÚJO, José Henrique Mouta. Mandamus , 7th ed. Salvador: Editora Juspodivm, 2019.

ASSIS, Araken de. Manual of the Execution Process . 8th ed. São Paulo: Revista dos Tribunais, 2016.

BAUM, Lawrence. The American Supreme Court . Translated by Francisco Rezek. Rio de Janeiro, Forense Universitária, 1987.

MITIDIERO, Daniel Francisco. Superior Courts and Supreme Courts: From Control to Interpretation, from Jurisprudence to Precedent. São Paulo: Thomson Reuters Revista dos Tribunais, 2017

OLIVEIRA, Pedro Miranda de. Key Aspects of the Claim in the New Code of Civil Procedure. In: Revista de Processo . 2015. p. 299-318.

SALLES, Carlos Alberto de. Writ of mandamus against judicial acts: precedents 267 and 268 revisited. In: BUENO, Cássio Scarpinella; ALVIM, Eduardo Arruda; WAMBIER, Teresa Arruda Alvim. (Coord.). Controversial and current aspects of the writ of mandamus : 51 years later. São Paulo: Editora Revista dos Tribunais, 2002. p. 138

TALAMINI, Eduardo. New aspects of Brazilian constitutional jurisdiction . 2008. Doctoral Thesis. Habilitation (Livre-docência) – Faculty of Law, University of São Paulo, São Paulo.