General Theory of Appeals in Civil Law

Origin and definition of resources in Brazilian law

Before understanding legal remedies, it is necessary to delve a little into anthropology. This is specifically to understand the social function of legal remedies, and what motivates their existence beyond the structure provided by law.

When we delve into the analysis within the anthropological sphere, we understand the close connection between the resource and the feeling of resignation. Human beings are naturally averse to doing, or failing to do, what they desire; external limitations do not please us. A banal example can demonstrate this intimate connection.

Imagine a family consisting of two adults and a child. Let's say the child wants to go to the park and asks the first adult. The adult refuses without giving any reason. The child asks for reasons, but the adult doesn't provide any.

Continuing with the example, the child, still upset, approaches the second adult and asks again to go to the park. This adult refuses again, but explains that it's because the weather is very hot.

Notice how the child's initial dissatisfaction with the lack of reasons, and later with the continued refusal to go to the park, leads them to appeal to the second adult. This feeling is what motivated the child's "appeal," as they felt the need for a reassessment, creating a systematic appeal process.

If we were to translate the child's actions into legal jargon, the child's first action was to file a motion for clarification based on the omission of the legal basis. Immediately after that, she filed an appeal to have the other adult comply with her request to go to the park.

Given that the appeals system is intimately related to human nature, its origin is obviously not recent and dates back to Ancient Rome, more specifically to the institutions of legis actiones and per formulas . In this part of the process, it went through a public phase, before a state official, and another private phase, before a private judge.

With the development of Roman law and the concentration of jurisdiction in the State, these institutions evolved into the apellatio , in which a party can return to the State the possibility of reviewing the decision made by its official.

Just one additional note: observe how the word *apellatio* resembles our * apelação* (appeal ), and how the effects of the appeal are very similar. Furthermore, note the verb *devolver* (to return), this is the origin of what we will call the *devolutivo* effect . However, that is a topic for another discussion.

Continuing the historical evolution of the appeal in the Roman Empire, years after the fall of the western part of the empire, there was the rise of Emperor Justinian, who commissioned the great jurist Tribonian to compile Roman laws in the Corpus Iuris Civilis Romanii and thus consolidate the appellatio.

In addition to consolidating the Roman legal system by creating the Corpus Juris Civilis , Justinian and Tribonian enabled the study of Roman legal systems, which influenced several modern codes.

After several evolutions, which require a separate article, the Portuguese incorporated the appeals system into the Afonsine Ordinances, whose source was Roman canon law. This evolved into the Manueline Ordinances, which lasted until the Iberian Union, when the Philippine Ordinances were instituted; these were used by Brazil even after its independence.

Currently, to conceptualize what constitutes an appeal in civil procedure, it is imperative to base ourselves on three characteristics of what an appeal is. According to Daniel Amorim, these are: (i) voluntariness, (ii) express provision in federal law, (iii) development in the same process in which the challenged decision is made, (iv) manageable by the parties, aggrieved third parties and the public prosecutor's office , and finally, (v) its purpose is to clarify, annul or reform the decision.

Of these basic characteristics, we should explain one in more detail for now: the development of the appeal within the same case file. The others will be developed throughout the following section.

Anyone paying attention to the above explanation, as well as possessing some technical knowledge of the law, might be wondering: but what about the interlocutory appeal? This develops within a new process and is considered an appeal. Just read articles 994, 1.015 and following of the CPC (Brazilian Code of Civil Procedure ).

In this specific case, what happens is merely the separation of the interlocutory appeal from the main proceedings. However, it is the same process, so much so that there is no summons of the other party, but merely notification to, if desired, file a response.

The process is the same as that described in Article 1.018, caput , of the CPC, which states that the appellant may attach to the case file a copy of the interlocutory appeal, as well as proof of its filing, so that the Court, if it so wishes, may reconsider its decision, in accordance with Article 1.018, §1 of the CPC.

It is important to highlight that the only exception to the rule that a party is merely notified to respond to an appeal, and therefore the appeal does not constitute a new process, is the summons to respond to an appeal filed against a preliminary ruling. In this case, the party is summoned, not notified, because the court, without hearing the defendant, has already dismissed the initial petition. Therefore, to be included in the process and respond to the appeal, the defendant must be summoned.

To facilitate an even clearer understanding of what appeals are, it is necessary to differentiate them from substitute appeals.

Dichotomy between appeals and substitute appeals

Both appeals and procedural substitutes are types of means of challenging judicial decisions. While an appeal was defined in the previous section based on those 5 elements, the definition of a procedural substitute is residual, meaning that anything that is not an appeal will be a procedural substitute.

Because the definition of a substitute is residual, these instruments necessarily resemble resources, but they will lack one or another element that disqualifies them as resources.

To facilitate the analysis, we will divide internal appeal substitutes from external appeal substitutes and present each type of substitute, with a respective demonstration of the reasons why they are not appeals.

Internal procedural substitutes are those that develop within the same process; therefore, they share this characteristic with appeals, but this is their only similarity. Examples include: the necessary review, the partial correction, the request for reconsideration, and the challenge or objection to execution.

The necessary review is provided for in article 496 of the CPC, which states that any judgment against the State will only produce effects after being confirmed by the Court, unless it falls under one of the exclusion hypotheses, for example, a judgment based on consolidated jurisprudence of the Superior Courts will not be subject to review.

By its very definition, it is clear that the necessary review is not an appeal, since the latter is independent of any action by the State and therefore lacks voluntariness. Furthermore, it is not dialectical, as there is no presentation of reasons; the Court will analyze the case file as it stands.

Partial correction, provided for in Article 6 of Law 5.010/1966, is the instrument by which a party can reorganize the process; that is, if there is a reversal of the procedural order, the party may use partial correction to return the case file to the correct procedural course.

This is not an appeal, as most legal scholars understand the partial review process to be administrative in nature, given that Law 5.010/66 was equated with state judicial organization laws and, therefore, is merely administrative.

A request for reconsideration is merely an interlocutory petition in which one of the parties pleads with the court to review its decision. It is not an appeal, as it is not provided for by law; it is simply an interlocutory petition. It should be noted that the filing of a request for reconsideration does not interrupt or suspend the time limit for appeals.

Finally, objections and appeals against enforcement are merely forms of defense for the defendant against the plaintiff's claim; they are not appeals, as they are not provided for by law. Their legal nature is that of procedural incidents.

External procedural substitutes are those that develop not only in separate proceedings, but in processes distinct from the challenged decision. This characteristic alone disqualifies them as appeals. Examples include rescissory actions, annulment actions, claims, writs of mandamus, and third-party opposition.

Given the very nature of these substitutes being external to the demand, it is not worthwhile in this article to dwell on the reasons why they are not considered resources.

Resource classification

The task of classifying is important for a better understanding of resources in kind. Without classification, understanding each resource, as well as its particularities, can become a Herculean task. Therefore, we classify in order to systematize.

As a starting point for our classification, we will follow the criteria suggested by Daniel Amorim, which seem easier to understand and put into practice. These are the paradigms: Immediate object of the appeal, grounds for appeal, scope of the matter challenged, and independence or subordination.

Regarding the immediate object of the appeal , in this case, what the party seeks to protect through the filing of the appeal is analyzed. This criterion creates two types of appeals, namely: ordinary and extraordinary.

It is important to remember that we are discussing the classification of appeals and not their specific types. Therefore, we will not discuss the ordinary and extraordinary appeals that exist in the legal system.

The ordinary type of appeal is one whose sole purpose is to protect the right and subjective interest of the party. The central object of the appeal is the subjective interest, and even if there is a better application of the rule as a result of the appeal's judgment, this effect is secondary to the party's interest.

An example of an ordinary appeal is the appeal process, in which the party returns to the Court all the matters that were analyzed by the second-instance court with the aim of having the sentence reformed.

An extraordinary appeal, on the other hand, transcends the singular, subjective interests of the parties, but is primarily concerned with the proper application of the law and the standardization of its application. In this case, the roles are reversed; if the appeal is granted, naturally, the party that filed it will benefit, but this is a side effect of the central objective of the appeal, which is the proper application of the rule.

Extraordinary appeal in practice: from preparation to judgment of the Extraordinary Appeal.

One example is the special appeal, in which the very grounds for its admissibility set forth in Article 105, III of the Federal Constitution demonstrate that the central objective of the appeal is not the interest of the party, but the proper application of the law.

Regarding the criterion of grounds for appeal , this criterion aims at the level of freedom that the party has to justify their appeal. This category creates two types of appeals: those with free grounds and those with bound grounds.

Free- formal arguments are those in which the party has no impediment to their argumentation and can present factual and legal arguments without any restriction. Such appeals are the norm in Brazilian law.

An example of a freely presented appeal is the appeal itself, in which the party has no impediment to presenting all the facts or legal arguments for analysis by the appellate court.

Appeals based on specific grounds for appeal do not allow the party to argue whatever they wish, but must restrict their arguments to certain matters. If the party does not adapt their appeal to the limitations of this type of appeal, the appeal will not be considered.

The special appeal is notably a resource with linked grounds, in which the matter to be debated is strictly legal; it does not allow for the re-analysis of factual matters or contractual clauses, as per statements 5 and 7 of the STJ (Superior Court of Justice) precedent.

From the perspective of the scope of the contested matter , it is analyzed whether, when filing the appeal, the party addresses everything they had an interest in appealing, or not. From this perspective, appeals can be total or partial.

Full appeals are those in which a party appeals on all matters they wish to appeal on. Partial appeals are those in which a party appeals only on certain points they wish to appeal on.

This classification is important for determining whether or not there is preclusion regarding a particular matter. In the case of total appeals, obviously, there is no preclusion of any matter, since the entire decision is being appealed; in the case of partial appeals, it is imperative to analyze the matters that have been precluded.

Just to be clear, imagine the following example: A sues B and seeks compensation for moral damages, lost profits, and consequential damages. The judgment only orders B to compensate for consequential damages. Therefore, A's appeal will be total if B appeals the moral damages and lost profits claims.

Finally, regarding the criterion of independence or subordination of the appeal, the interdependence between the appeal and the opposing party's action is analyzed. From this perspective, there are independent appeals and subordinate appeals.

An independent appeal is one filed or opposed within the legal time limit, without any relation to the opposing party's action. Subordinate appeals, on the other hand , are those filed within the time limit for responding to a pre-existing appeal.

This classification is important for analyzing the admissibility of the appeal, whether it will be heard or not. In the case of independent appeals, these only need to meet the legal requirements to be heard, while subordinate appeals, in addition to meeting the legal requirements, require that the main appeal to which they are linked also be heard.

Therefore, to make it easier to understand, imagine the following situation: A filed an appeal. B, within the time limit for filing counter-arguments to A's appeal, files an ancillary appeal. A's appeal is independent, while B's appeal is subordinate to A's. If A's appeal is not admitted, B's appeal will also not be admitted. But if A's appeal is admitted and B's appeal does not meet the legal requirements, only B's appeal will not be admitted.

Effects of appeals

The filing or opposition of an appeal necessarily generates some consequences in the process, effects. The most traditional doctrine understands that there are only two effects, suspensive and devolutive. But, currently, at least eight effects are recognized, which will be studied in sequence.

In keeping with traditional doctrine, we will begin with the suspensive effect . Some appeals, when filed, can suspend the effectiveness of the decision being appealed; therefore, the decision will not produce its effects until the appeal is judged.

There are two types of suspensive effect depending on their origin: whether they derive from the law or from a judicial decision. Appeals whose suspensive effect derives directly from the law are ope legis , such as an appeal. Appeals that depend on a decision to produce such effects have a suspensive effect ope judicis.

An interesting observation should be made regarding this effect. According to Barbosa Moreira, the suspensive effect does not arise with the filing of the appeal, but is a consequence of the mere possibility of filing an appeal with suspensive effect. Therefore, the decision is ineffective from the outset and remains so during the appeal period; when the appeal is filed, the suspensive effect is extended until its judgment.

An interesting example that attests to the validity of this theory concerns the provisional enforcement of a judgment. As the reader knows, an appeal with suspensive effect is available against the judgment. Therefore, provisional enforcement of a judgment is not possible during the appeal period, and jurisprudence supports this view.

The devolutive effect was already mentioned in the initial topic of this article. This effect refers to the return of the decided matter to the Judiciary, so that it may re-analyze it and, in this way, produce a new decision.

Some legal doctrines hold that a devolutive effect only occurs if there is a distinction between the body that issued the decision and the body responsible for judging the appeal. Therefore, for these latter bodies, motions for clarification would not have such an effect.

Continuing beyond the traditional doctrine, there is the obstructive effect . The filing, or opposition, of any appeal prevents/obstructs the finality of the decision. Although this effect is similar to the suspensive effect, the difference lies in what is being postponed; the suspensive effect postpones the effectiveness of the decision, while the obstructive effect prevents it from becoming final.

In the context of appeals, the term "translative effect " refers to the possibility of the adjudicating body considering and ruling on certain matters that were not raised in the appeal. In other words, the adjudicating body may, in certain cases, rule beyond the scope of the appeal.

An example of the possibility of a translative effect is prescription, which may be recognized ex officio, as provided for in articles 332, §1° and 487, both of the CPC.

It is worth noting that, regarding extraordinary appeals , there are two doctrines concerning the possibility of a translative effect in this type of appeal.

The first doctrine does not admit the existence of this effect in extraordinary appeals, since the matter on which such an effect would fall was not properly raised in the lower courts. This understanding is followed by Nery Júnior and by the Supreme Federal Court itself.

The second school of thought acknowledges the existence of a translative effect in extraordinary appeals, associating pre-questioning solely and exclusively with the admissibility judgment, not with the judgment on the merits, which is why such matters could be judged.

The expansive effect refers to the possibility of the decision on appeal affecting both acts and people beyond the limits established by the appeal itself.

There are three types of suspensive effect, the paradigm of which is the object that was expanded or affected by the expansion of the decision; these are: internal objective expansive effect, external expansive effect, and subjective expansive effect.

The objective internal expansive effect refers to the possibility of the appeal decision modifying parts of the appealed decision that were not the subject of the appeal. For example, X appeals regarding the award of moral damages, but does not address the costs and attorney's fees; if their appeal is successful, naturally both the division of costs and attorney's fees will be affected.

The objective external expansive effect is characterized by the possibility of the appeal decision affecting other procedural acts beyond the appealed decision itself. This is the case with interlocutory appeals without suspensive effect; if the decision is annulled, all acts performed after the annulled decision will also be null.

Finally, the subjective expansive effect refers to the possibility of the appeal decision affecting other participants in the process who did not file the appeal. An example of this is in actions with multiple parties, in which one of them filed an appeal, which is successful and benefits both.

The substitutive effect is the possibility of the appeal decision replacing the appealed decision. For this effect to occur, the appeal must be admitted and, on its merits, granted, provided that granting the appeal does not imply the annulment of the appealed decision.

The regressive effect is the possibility, arising from the law, for the court that issued the appealed decision to review the merits of the decision. This effect is present in all appeals.

Finally, the deferred effect exists when there is a certain interdependence between the appeals. This is the case, for example, of an appeal filed in the form of an ancillary appeal; it will only be considered if the main appeal is also considered, as explained in the previous section.

Conclusion

This article aimed to serve as an introduction to the general theory of appeals in Brazilian civil law. Although we have discussed the general theory of appeals at length, there is still much material to be studied, which is beyond the scope of this article.

For example, it is still necessary to discuss the principles governing resources, as well as the resources themselves in kind, in order to delve even deeper into their peculiarities and current state.

In addition to addressing such more general matters, the blog also contains articles about more specific aspects of certain appeals, such as, for example, my article discussing relevance in special appeals.

Regarding the other topics not covered here, or not covered on the IDP blog, these will be the subject of future articles, such as procedural substitutes and the study of procedural principles. To always receive our articles in your email, consider subscribing to our newsletter.

I also invite you, if you wish to go further, to enroll in the Postgraduate Program in Civil Procedure at IDP , which, in addition to covering these subjects in detail, will also provide updates. Remember, staying updated is a sine qua non requirement for progressing within the legal world.

References:

Manual of Civil Procedural Law – Single Volume, NEVES, Daniel, – 15th Edition – São Paulo: Juspodvm 2020.

Comments on the Code of Civil Procedure, BARBORA MOREIRA, José Carlos – 16th ed. – São Paulo: Editora Forense, 2023.

https://www.migalhas.com.br/coluna/processo-e-procedimento/223428/a-regencia-dos-recursos-no-novo-cpc–parte-i, acessado em 29/10/2023.

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