Some time ago, in law schools, it was very common to hear that Civil Law and Civil Procedure were the most important part of Law. This paradigm changed with the Federal Constitution of 1988.
We've already seen here on the IDP blog that the Constitution marks the redemocratization of the country, and it was conceived as the apex of the legal system. It deals with the structural rules of Brazil and its fundamental foundations.
In our article on constitutional hermeneutics , we also learned that it is impossible to interpret sub-constitutional law in isolation from constitutional law.
For this reason, we can no longer understand Private Law, or even branches of Public Law, in a way that is disconnected from the Federal Constitution.
Let's understand how the 1988 Federal Constitution influences Civil Procedural Law and what this means in practical terms.
Civil Procedure in Light of the 1988 Federal Constitution
A few weeks ago, we studied here on the IDP Blog that Public Law regulates the relations and activities of the State itself, its relations with private individuals, the protection of the common good, and its dealings with other States.
We also studied that Procedural Law is a branch of Public Law. In this sense, and considering that the process is a sovereign function of the State, it is the Federal Constitution that safeguards the attributes, limits, and individual rights inherent to the procedural function, including Civil Procedure.
It is no coincidence that Article 1 of the 2015 Code of Civil Procedure prescribes as follows: "Civil procedure shall be ordered, disciplined and interpreted in accordance with the values and fundamental norms established by the Constitution of the Federative Republic of Brazil, observing the provisions of this Code."
There was also the constitutionalization of numerous principles of Civil Procedural Law, known as the constitutional principles of procedure.
One of them is due process of law (article 5, LIV). This principle guarantees that any person has the right to demand a trial that takes place in accordance with previously established procedural rules.
Deprivation of liberty or property will only be legitimate if the legal process is fair and adequate, with equitable participation of the parties. Thus, all those involved must base their actions on criteria of justice, reasonableness, and rationality.
The principles of due process of law give rise to the principles of adversarial proceedings and full defense (Article 5, LV). The Constitution ensures that the parties in judicial or administrative proceedings are informed of the acts of the process, so that each party can challenge them.
The process is dialectical: one party presents the thesis, the other the antithesis, and the judge embodies the synthesis.
According to the principle of broad defense, which is the right to a fair hearing, the parties may use all legal and morally permissible means for their defense.
Another principle emanating from the 1988 Federal Constitution is that of the natural judge (Article 5, XXXVII). Here, the creation of a court or tribunal of exception is prohibited, and it establishes that no one can be prosecuted or sentenced except by the authority competent to do so.
The constitutional principles of Civil Procedure also include the inalienability of judicial review and access to justice (Article 5, XXXV). These principles state that the law (or any authority) shall not exclude from the review of the Judiciary any injury or threat to a right. For this reason, the prior exhaustion of administrative remedies cannot be required for access to the Judiciary.
The principle of reasonable duration of proceedings is also found in the Federal Constitution of 1988 (article 5, LXXVIII). Based on this principle, everyone is guaranteed, whether in judicial or administrative proceedings, the right to a reasonable duration of proceedings and the means to ensure their expeditious handling.
It is important to note, however, that the speed of judicial proceedings cannot be used to make the process unfair or to deny fundamental rights.
Other constitutional principles relevant to Civil Procedural Law are: legal aid for the needy (art. 5, LXXIV); the guarantee of a writ of mandamus for the protection of a clear and certain right (art. 5, LXIX); the right to petition against abuse of authority (art. 5, XXXIV, a ); and the right to popular action (art. 5, LXXII).
We can also mention that it is the Constitution that outlines the rules to be observed by the judicial bodies, their competencies, and their functioning. All of this is to achieve the objectives within Civil Procedural Law, under penalty of unconstitutionality.
It is the constitutional norms of Civil Procedural Law, therefore, that create, order, and regulate the organizational and operational model of the State-judge, which must necessarily be observed by those who interpret and apply the law.
The New Code of Civil Procedure: Theoretical and Practical Discussions and Dialogues
The 2015 Code of Civil Procedure (CPC/2015) brought several theoretical and practical updates compared to the previous Code (CPC/73), mainly due to the constitutional principles that govern the subject.
One of them refers to attorney's fees, a discussion that was very common under the CPC/73 (Brazilian Code of Civil Procedure of 1973). Article 20 and its paragraphs stated that fees would be determined primarily based on five aspects:
- a) the professional's level of diligence;
- b) the place where the service is provided;
- c) the nature and importance of the cause;
- d) the work performed by the lawyer;
- (e) and the time required for your service.
It was difficult, then, for the judiciary to set fees in a way that adequately reflected the work of the lawyers. Often there were appeals to challenge the percentage awarded to the parties' representatives.
With the 2015 Code of Civil Procedure (CPC/2015), more objective standards were established for setting attorney's fees. Article 85 provides much more specific criteria and instituted paragraph 14, which states: "Attorney's fees constitute a right of the lawyer and are of an alimentary nature, with the same privileges as credits arising from labor legislation, and compensation is prohibited in case of partial defeat."
This provision makes it difficult to offset attorney's fees in cases of reciprocal defeat. This means that when the plaintiff has part of their claim granted and part denied, they must pay attorney's fees to the defendant's lawyer, and the defendant must pay attorney's fees to the plaintiff's lawyers, without offsetting one against the other.
Finally, a discussion that took place in the 73 Code of Civil Procedure and was addressed by the 2015 Code of Civil Procedure in light of the 1988 Federal Constitution was about the importance of conciliation, mediation, and other methods of consensual conflict resolution.
This system should be encouraged by judges, lawyers, public defenders, and members of the Public Prosecutor's Office, even during the course of judicial proceedings, as stipulated in Article 3, § 3, of the CPC/2015.
Civil Procedural Law and the Master's and Doctoral Programs at IDP
Good reading suggestions for you to delve deeper into the subject are works on both Constitutional Law and Civil Procedure Law.
Good references in Constitutional Law are those written by Gilmar Mendes and Paulo Gonet, who are professors at IDP in the Master's program in Constitutional Law and the Academic Doctorate in Law, in the area of State, Fundamental Rights and Legal Theory.
In Civil Procedural Law, the works of Georges Abboud and Luiz Rodrigues Wambier, also professors at IDP, are required reading. In the Master's program in Constitutional Law and the Academic Doctorate in Law , these works are included in the research line of Private and Procedural Law in the Constitutional Order.
Luiz Felipe Fleury Calaça, a Master's student in Constitutional Law at IDP, acknowledges: “The disciplines of the stricto sensu postgraduate program transform the student. Through a structure based on dialogue between students and professors, the student is led to question themselves all the time, in order to broaden their perception of the world and their knowledge of the topic under investigation.”
Furthermore: "It is a synthesis of excellence in the construction of theoretical, empirical, and professional knowledge."
Want to learn more about the subject? Want to know more about IDP's lato sensu and stricto sensu postgraduate programs ? Check out our blog for articles on Constitutional Law and Civil Procedure, share them, and invest in your academic and professional career with our programs.
References:
ABBOUD, Georges. Brazilian Constitutional Process . 5th ed. São Paulo: Revista dos Tribunais / Thomson Reuters, 2021.
ABBOUD, Georges.; NERY JUNIOR, Nelson. (Org.). Civil Procedural Law 1: Cognizance Process. 1st ed. São Paulo: Revista dos Tribunais, 2015.
BRAZIL. Code of Civil Procedure of 2015. Available at: <http://www.planalto.gov.br/ccivil_03/_ato2015-2018/2015/lei/l13105.htm>.
BRAZIL. Constitution of the Federative Republic of Brazil . Available at: <http://www.planalto.gov.br/ccivil_03/constituicao/constituicaocompilado.htm>.
MENDES, Gilmar Ferreira; BRANCO, Paulo Gustavo Gonet. Course on Constitutional Law . 12th ed. São Paulo: Saraiva, 2017.
WAMBIER, Luiz Rodrigues; BECKER, Rodrigo Frantz; NOBREGA, Guilherme Pupe da; TRIGUEIRO, Victor Guedes (Eds.). Code of Civil Procedure in the STF and STJ . 1st ed. Salvador: Juspodivm, 2018.