For those who work daily in civil litigation, and especially with Civil Procedural Law, it is well known that the practice is marked by constant jurisprudential evolution.
There are also some changes that occur at the legislative level and that often reflect the interpretations of the Superior Courts.
Therefore, legal professionals are required to be attentive to precedents and innovations that directly impact the application of procedural rules!
In this text, I want to analyze with you the most important decisions of the Superior Court of Justice (STJ) in 2024.
There are several important rulings! Take notes. The selected rulings will undoubtedly help you in your day-to-day work in civil litigation.
Is it possible for the court to recognize the exemption from seizure ex officio?
In the context of Civil Procedural Law, the unseizability of assets is a recurring topic of discussion, especially regarding the possibility of recognition of this by the judge ex officio.
The Superior Court of Justice, in a recent decision within the scope of Bulletin 828, analyzed the issue in light of article 833, item X, of the Code of Civil Procedure, which provides for the unseizability of amounts deposited in savings accounts up to the limit of 40 minimum wages.
According to the Superior Court of Justice (STJ), the exemption from seizure provided for in the aforementioned provision is not a matter of public order, which implies that it must be argued by the debtor, under penalty of preclusion.
The understanding consolidated by the Court establishes that the judge cannot, ex officio (that is, without a request), recognize such unseizability, since it is a disposable patrimonial right.
Furthermore, the Superior Court of Justice (STJ) reinforced that article 854 of the Code of Civil Procedure of 2015 provides a specific procedure for the debtor to demonstrate the unseizability of funds blocked in their account, granting them a period of five days to present the necessary proof.
If this prerogative is not exercised in a timely manner, the matter will be precluded, making its subsequent consideration impossible, including in a preliminary objection to enforcement.
Therefore, if you work with strategic defense planning or seek to protect the assets of those being sued, understanding these nuances is essential for making more assertive, and above all, timely decisions!
Is it possible to change the defendant in a lawsuit after the case has been prepared for trial?
This is another controversial topic to be judged in 2024!
This is because the jurisprudence of the Superior Court of Justice (STJ), in the judgment of REsp 2.128.955/MS, offered some valuable guidance for understanding the limits and possibilities of this change.
Article 329 of the Code of Civil Procedure establishes the circumstances under which the plaintiff may amend or alter the initial petition.
The legal provision states that:
- Until the summons is served, the amendment of the claim or the cause of action is permitted, without requiring the defendant's consent.
- After the summons, but until the case is ready for trial, the amendment can only occur with the defendant's consent, ensuring the right to a fair hearing.
However, this rule specifically addresses changes to the claim and the cause of action, not directly addressing modifications to the subjective composition of the lawsuit, such as the substitution of parties on the defendant's side.
In the case analyzed by the Superior Court of Justice (STJ), the alteration of the defendant was permitted even after the case had been prepared for trial, provided there was no change to the claim or the cause of action.
According to the Superior Court of Justice (STJ), preventing the modification of the defendant in situations where the claim and the cause of action remain unchanged would imply excessive formalism, contradicting the objective of the process, which is to guarantee the delivery of justice in a swift and effective manner.
The Superior Court of Justice's decision opens the door for errors or omissions in identifying the defendant to be corrected without the need to initiate a new lawsuit, saving time and resources for the parties and the Judiciary itself.
However, it is important to note that this change cannot prejudice the right to a fair hearing or the right to a full defense.
The "new defendant" included in the lawsuit must be properly summoned and given the opportunity to present their defense.
This decision also allows for interesting theoretical reflections.
Look, contemporary civil procedure increasingly seeks to align itself with constitutional principles, prioritizing the resolution of conflicts in a substantive, not merely formal, way.
This approach reinforces the instrumental nature of the process, as Professor Dinamarco already taught, which should be understood as a means to achieve justice and not as an end in itself.
What if I file a non-existent appeal? What happens then?
It's like I'm asking you: what if I file a motion for reconsideration…
Pay close attention to this ruling!
The Superior Court of Justice (STJ), in the judgment of REsp 2.141.420-MT, made a relevant contribution by stating that the filing of a non-existent appeal does not generate consumptive preclusion, allowing the appellant to present the correct appeal within the legal deadline.
The principle of exhaustiveness of appeals establishes that only appeals expressly provided for by law are admissible in the legal system.
Thus, an appeal filed against a decision that is not provided for by law is not recognized by the procedural system and, therefore, cannot produce legal effects.
The case being analyzed by the Superior Court of Justice (STJ) illustrates this issue in a practical way.
An interlocutory appeal, which was abolished by the 2015 Code of Civil Procedure, was erroneously filed.
The court of origin dismissed the appeal due to its lack of legal basis.
Subsequently, still within the legal timeframe, the appropriate appeal, an interlocutory appeal, was filed.
The question that arose was: does filing a non-existent appeal result in preclusion?
Now, consumptive preclusion prevents a party from performing a procedural act that has already been carried out again.
However, the Superior Court of Justice (STJ) understood that filing a non-existent appeal does not constitute the valid exercise of a procedural right.
Therefore, the principle of consumptive preclusion cannot be applied, since the non-existent appeal is not capable of fulfilling the minimum requirements for its admissibility.
This decision is an important milestone for legal practice.
As a lawyer or legal professional, you may have already encountered situations where a mistake in choosing the appeal process raises concerns about the possibility of missing a deadline or precluding any further action.
The Superior Court of Justice's understanding reinforces that, when there is an error in choosing the appeal, the act does not invalidate the right to file the correct appeal, provided that it is done within the legal deadline.
This understanding also brings greater security to those subject to the law, allowing honest mistakes to be corrected without disproportionate penalties.
However, it is crucial that lawyers act diligently to avoid such errors, using case law only as an exceptional measure.
The issue of penalty clauses
A penalty for non-compliance, or astreintes, plays an essential role in the indirect coercion to ensure compliance with judicially imposed obligations.
However, its management of the process faces specific limitations, especially regarding the possibility of changes after the consolidation of the accumulated amount.
The Special Court of the Superior Court of Justice (STJ), in the judgment of EAREsp 1.766.665-RS, addressed the issue in depth, delimiting the application of the consumptive preclusion regarding the review of the fine.
Article 537, § 1, of the Brazilian Code of Civil Procedure (CPC/2015) establishes that the judge may alter or eliminate the accruing fine – the one that is still in progress – but does not allow the review to reach amounts that have already been consolidated.
Thus, while the judge may, at any time, adjust the amount of future fines to avoid excesses or inadequacies, the amounts already accumulated are treated as the assets of the plaintiff, protected by their patrimonial nature.
The Superior Court of Justice (STJ) clarified that, although the decision imposing penalty payments is not subject to temporal preclusion, the same does not apply to consumptive preclusion.
Since the judge has already reviewed the amount of the fine, a further change to the same amount will not be allowed.
According to the Superior Court of Justice (STJ), this limitation is essential to ensure stability and avoid repetitive revisions that could benefit the recalcitrant debtor.
If the debtor considers the amount of the fines excessive, it is essential to act quickly, requesting a review while the fine is still due.
Once the amount is consolidated, the possibility of alteration becomes extremely restricted.
Furthermore, the creditor must be mindful of the use of penalty payments to ensure the effectiveness of court decisions, but without allowing them to become a source of unjust enrichment.
The judge, in turn, has the responsibility of balancing the principles of proportionality and reasonableness in imposing and reviewing fines.
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