Imagine this situation: you're a lawyer and your client's claim of absolute incompetence was rejected by the judge. The case will proceed for years in the wrong court. When the appeal finally arrives, the court recognizes that the judge was indeed incompetent. The result? All the decisions are annulled. Years of work wasted. 

This frustration stems from the well-known list in Article 1.015 of the CPC (Brazilian Code of Civil Procedure). 

The 2015 legislature attempted to create a closed list of situations in which an interlocutory appeal is admissible. The intention was good, to streamline the appeals system. The problem is that the list remained incomplete, as strategic decisions were left out.

Years after the CPC/15 (Brazilian Code of Civil Procedure of 2015), the Superior Court of Justice sought to outline a solution. In the judgment of Theme 988, the Special Court created what it called "mitigated taxativity." In practice, this means that an interlocutory appeal can be filed even outside the express hypotheses, provided there is qualified urgency.

In this article, we will understand what this mitigated taxativity is, how it works in practice, what has changed with the STJ precedent, and why this topic has become essential for those working in civil litigation.

What is mitigated taxativity?

The term was coined by Minister Nancy Andrighi in the judgment of REsp 1.704.520/MT, in December 2018. The central idea is simple: the list in article 1.015 of the CPC remains exhaustive, but it includes an "additional admissibility clause" based on urgency.

This is not about considering the list merely illustrative. Nor is it an extensive or analogical interpretation of the existing clauses. It is something different, an escape valve for situations in which waiting for the appeal would render the recourse completely useless.

The logic is straightforward. If a party has no practical benefit in re-litigating the issue in the future, then they should be able to appeal immediately. Otherwise, the system would be denying effective judicial protection, which the Constitution does not allow.

The hypotheses expressed in article 1.015

Knowing the legal framework helps to understand what was left out. Let's look at the main scenarios covered:

Provisional injunctions (item I) have always been appealable by way of interlocutory appeal. This makes sense, since decisions on preliminary injunctions and provisional relief have an immediate and often irreversible impact.

Decisions on the merits of the case (item II) are also subject to appeal. When the judge partially resolves the merits, ruling on one of the claims or dismissing a defendant on the merits, the party may appeal immediately.

The rejection of the arbitration agreement (paragraph III) was included because, if the party has to wait for the appeal, the entire process will have taken place before the state courts when it should have gone to arbitration.

The incident of disregarding the legal personality (item IV), free legal aid (item V), the exhibition of documents (item VI), the exclusion of a co-litigant (item VII), and the intervention of third parties (item IX) complete the main hypotheses.

The problem lies in what was left out: jurisdiction, connection, contiguity, value of the case, confidentiality, among other equally urgent matters.

Why was the list incomplete?

The 2015 legislator drew inspiration from foreign models that limit the appealability of interlocutory decisions. 

In Germany, France, and the United States, the general rule is that incidental decisions are not subject to immediate appeal, except in exceptional circumstances.

The premise was correct; most procedural issues can await final judgment without significant prejudice. The mistake was attempting to exhaustively list which situations would be urgent. The complexity of litigation always exceeds the legislator's ability to foresee.

It only took a few months of the 2015 Code of Civil Procedure coming into effect for legal scholars and case law to identify serious shortcomings. 

The decision regarding absolute jurisdiction is the most obvious example, considering that if the judge rejects the claim of lack of jurisdiction and the case proceeds for years in the wrong court, any acceptance of the issue on appeal implies the annulment of everything. A complete waste of judicial activity.

How do you demonstrate urgency?

In legal practice, mitigated taxativity imposes a reinforced argumentative burden on the lawyer. It is not enough to cite the STJ precedent and allege generic harm. It is necessary to demonstrate concretely why that specific decision cannot wait.

The urgency that justifies an appeal outside the scope of the list is not the same urgency as that required for provisional remedies. It is not a matter of risk of material damage or ineffectiveness of the final ruling. It is an urgency of a procedural nature: the futility of a future judgment.

Some examples help to visualize this. 

The decision regarding jurisdiction is urgent because any reversal on appeal would nullify all proceedings. The decision denying confidentiality is urgent because the exposure of intimate information is irreversible; once the data is publicized, there is no way to "unpublish" it. 

The decision regarding the value of the case may be urgent depending on the concrete repercussions, such as changes to the procedure, modifications to court costs, and the impact on attorney's fees.

Decisions regarding the production of evidence, for example, rarely constitute an urgent matter. If the judge denies an expert evaluation, the party can renew the request or challenge the decision on appeal without significant prejudice. The court will analyze each case individually.

The court will make a two-pronged assessment: first, it will verify if the hypothesis falls outside the scope of the case; then, it will analyze if there is genuine urgency. 

It's worth mentioning that poorly substantiated appeals tend to be dismissed. Courts have been rigorous in this screening process, and rightly so. This legal argument was not created to serve as a procedural shortcut.

The preclusion regime

One of the most sophisticated aspects of the system is the asymmetry in the preclusive regime. In the express cases of article 1.015, inaction generates preclusion; if the party does not appeal, it cannot re-litigate the issue on appeal.

Outside of the established procedure, the logic is different. Even if there is urgency, filing an appeal is optional, not mandatory. If the party chooses not to appeal or if the court determines that there is no urgency and does not consider the appeal, there will be no preclusion. The issue may be raised as a preliminary matter in the appeal.

This solution preserves legal certainty. The party is not surprised by a preclusion arising from a situation not foreseen by law. 

Modulation of effects

The Superior Court of Justice (STJ) modulated the effects of the decision to preserve consolidated situations. The mitigated taxativity thesis only applies to interlocutory decisions issued after December 19, 2018, the date of publication of the judgment.

Previous proceedings continue to be governed by the interpretation then in force. Caution was necessary to avoid legal uncertainty and to respect the trust of the parties who acted based on the previous understanding.

The new professional profile

The mitigated taxativity requires more from the lawyer than just technical knowledge about appeals. It is necessary to develop argumentative skills to convince the court that the specific situation justifies the exceptional application of this measure.

Professionals who only master the legal text, without understanding the underlying premises of normative choices, will have difficulty constructing an appropriate procedural narrative. Contemporary civil litigation demands training that integrates theory and practice in a sophisticated way.

Lawyers, judges, members of the Public Prosecutor's Office, and public defenders need to understand not only what the Superior Court of Justice (STJ) decided, but why it decided that way and what the limits of this jurisprudential construction are. This understanding only comes with in-depth study.

Professionals who ignore topics such as mitigated taxativity risk missing deadlines due to a lack of knowledge of applicable legal grounds, or filing appeals that are doomed to be dismissed due to a lack of adequate justification. In both cases, the client is harmed and their professional reputation is compromised.

An opportunity to be at the forefront.

Topic 988 of the Superior Court of Justice (STJ) is six years old and continues to generate debate. The mitigated taxativity is not merely a competitive exam thesis or a procedural technique. It is a matter of general procedural theory: how far can the Judiciary go to correct legislative gaps?

IDP offers a Postgraduate Program in Civil Procedural Law, with a faculty that includes advisors to ministers of the Superior Court of Justice (STJ) and the Supreme Federal Court (STF), federal judges, and lawyers who work on the front lines of strategic litigation. The course addresses topics such as mitigated taxativity with the depth that forensic practice demands.

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