The appeals system is one of the pillars of the democratic rule of law. This is because, as is known, it is the responsibility of the state-judge to declare the law. The late Professor Arruda Alvim stated that the existence of appeals was based on the possibility of errors, inaccuracies, obscurities, omissions, or contradictions in judicial decisions.
For the professor, the term "appeal" refers to a "repeated course." Therefore, if there is an appeal, the challenged decision may be subject to re-examination by the Judiciary.
The general provisions regarding the appeals system are set forth in the Code of Civil Procedure , from article 994 to article 1.008 of said legislation.
Finally, it is important to remember that to challenge a court decision, in addition to appeals, the aggrieved party may also opt for independent actions of challenge or alternative appeal procedures.
What is the concept of a resource?
Defining legal resources is not an easy task, since numerous scholars have addressed this topic. However, every legal resource contains 5 fundamental elements! Shall we learn about them?
Voluntariness
Voluntariness means that, within the appeals system, anyone who receives an unfavorable decision can either accept it or challenge it. Therefore, the parties are not obligated to appeal; it is an option.
Express provision in federal law.
In the procedural system, appeals are exhaustive. What does this mean? Simple! For an appeal to be possible, there must be an express provision for appeal in Federal Law.
Only in Federal Law? Yes! Since legislating on procedural law is the exclusive competence of the Union (art. 22, I, CRFB/88).
Therefore, in order to appeal, an express provision for the appeal is necessary. In the case of the CPC/15 (Brazilian Code of Civil Procedure of 2015), we can find this provision in article 994 and its subsections.
The CPC/15 does not exhaust all types of appeals. Therefore, it is possible to find other appeals in federal legislation, such as the Unnamed Appeal in the microsystem of the Special Courts (article 41 of Law 9.099/95).
Development within the process itself in which the decision was made.
This element is very important! Remember that the civil procedural system has adopted the idea of a syncretic process. Therefore, both the cognitive phase and the executive phase constitute a single process.
Following this line of reasoning, think about it with me:
The court issued a ruling during the course of the proceedings, acknowledging the statute of limitations. If the aggrieved party wishes to appeal, this is not a new proceeding, but rather a challenge to the judicial decision within the same legal procedural relationship.
Thus, the appeal does not initiate a new process; it develops within the same legal-procedural relationship in which the challenged decision was issued.
Legitimacy to appeal
The legitimacy to appeal can be found in article 996 of the CPC/15. Professor Nelson Nery teaches that the law regulates two admissibility requirements for appeals: interest and legitimacy to appeal (for example, article 17 of the CPC/15).
Are these requirements cumulative? Yes! If one of them is missing, the appeal cannot be considered, and consequently, there will be no examination of the merits.
Article 996 states that: "The appeal may be filed by the losing party, by the aggrieved third party, and by the Public Prosecutor's Office, either as a party or as a guardian of the legal order."
Thus, the plaintiff, the defendant, the opposing party, the party summoned to the proceedings, and the third-party defendant have standing to appeal. These individuals are considered parties to the legal-procedural relationship.
Can the simple assistant appeal? Good question! It depends.
This is because, as is known, the simple assistant (provided for in article 121 of the CPC/15), has his activity, during the course of the process, subordinated to that of the assisted party. Therefore, he may only appeal if the assisted party consents or does not prohibit it.
In the case of the Public Prosecutor's Office, it has broad standing. What does this mean? If there is an interest, the Public Prosecutor's Office may appeal, whether as a party or as a guardian of the law in civil proceedings.
Examples of possible appeals by the Public Prosecutor's Office:
- In bankruptcy proceedings;
- In voluntary jurisdiction proceedings;
- In state actions;
And what about the legal standing of a third party who has been harmed?
The legitimacy of a third party is that which is qualified by a legal interest.
Note that the procedural legal relationship is between A and B. However, D has a legal interest in challenging the decision. Now, if he could have joined the proceedings as a simple or joint litigant assistant, there are no impediments to him appealing the decision.
To do so, it must demonstrate, as Professor Nelson Nery teaches, the nexus of interdependence between its interest in challenging the decision and the legal relationship decided by it.
Purpose of the appeal
Generally, the purpose of an appeal is to annul, amend, clarify, or supplement the challenged decision.
Generally speaking, when an appealing party requests the annulment of a decision, there is a procedural error, such as a violation of a procedural rule by the judge (also known as 'error in procedendo').
In the case of a request for review, there is generally a misjudgment of the factual situation, or when the law is applied incorrectly to the facts; these cases are known as 'error in judicando'.
Requests for amendment and annulment are the most frequent in forensic practice.
However, it is also possible for a party to request clarification of the decision, or even to request the correction of a material error. In these cases, the party will use a motion for clarification, which is addressed to the same court that issued the decision.
Given all the elements, can we construct a concept of resource? Yes! In particular, using the excellent conceptualization of Professor Nelson Nery:
"An appeal is the procedural means that the law makes available to the parties, the Public Prosecutor's Office, and a third party, to enable, within the same procedural legal relationship, the annulment, amendment, integration, or clarification of the challenged judicial decision."
Now it's time to learn about the types of appeals, which can be found in article 994 of the CPC/15.
In general terms, there are 9 remedies provided for in the Code of Civil Procedure. Legal scholars argue that this is an exhaustive list, and the parties, for example, cannot create new remedies in procedural legal transactions.
To facilitate your studies, we have prepared the table below, where you will find the types of appeals and their legislative references. Please note:
| Which feature? | Where can I find this in the CPC? |
| Apelacao | art. 1.009 of the CPC/15 |
| Interlocutory Appeal | art. 1.015 of the CPC/15 |
| Internal Appeal | art. 1.021 of the CPC/15 |
| Declaratory Appeals | art. 1.022 of the CPC/15 |
| Ordinary Appeal | art. 1.027 of the CPC/15 |
| Special Appeal (REsp) | art. 1.029 of the CPC/15 |
| Extraordinary Appeal (RE) | art. 1.029 of the CPC/15 |
| Appeal in Special Appeal or Extraordinary Appeal | art. 1.042 of the CPC/15 |
| Appeals for Divergence | art. 1.043 of the CPC/15 |
Many recursive species, right? However, we need to pay attention to an important point in our study.
Appeals serve to challenge "judicial decisions" in a broad sense! However, for us students, lawyers, and legal researchers, it is extremely important to know each type of judicial decision. They are divided into first instance and second instance decisions.
These are decisions made at the first level of jurisdiction:
(i) Judgment: is the decision that brings the cognizance phase to a close at the first level of jurisdiction. The judgment may resolve the merits (art. 487, CPC/15) or not (art. 485, CPC/15).
(ii) Interlocutory decision: this is a decision that resolves an incidental issue during the course of the action, but does not bring the process to an end.
(iii) Order: This is a decision that moves the process forward, without having a decisive character. Therefore, orders are not subject to appeal.
These are decisions made at the second level of jurisdiction:
(i) Judgment: this is a collegial decision, issued by three or more judges (art. 204, CPC/15);
(ii) Monocratic decision: this is a decision issued by only one judge (who is called the rapporteur), and is only possible in specific cases, provided for in procedural law (art. 932, III, IV and V, CPC/15).
Resource studies are essential for forensic practice. Furthermore, if you work in this field, it's extremely important to keep up-to-date and deepen your knowledge each day.
We studied the concept of appeals, their five fundamental elements, the types of appeals, and the modalities of judicial decisions. It won't be long before you become an expert in appeals!
Be sure to follow our articles on Civil Procedure Law on the IDP blog, and feel free to share this article with your friends! Until next time!
References
ALVIM, Arruda. Civil Litigation in the CPC/2015. Arruda Alvim. 2nd ed. rev., updated and expanded. São Paulo. Thomson Reuters Brasil, 2022.
BRAZIL. Law No. 13.105/15, of March 16, 2015, which established the Code of Civil Procedure. In: Palácio do Planalto.
NERY JÚNIOR, Nelson. Annotated Code of Civil Procedure. Nelson Nery Junior, Rosa Maria de Andrade Nery. 6th ed. São Paulo: Thomson Reuters Brasil, 2021.
MEDINA, José Miguel Garcia. Annotated Code of Civil Procedure. José Miguel Garcia Medina. 6th ed. São Paulo: Thomson Reuters Brasil, 2022.