Civil procedural law is the set of rules and legal principles that dictate the rules that must be applied in judicial and extrajudicial procedures for the resolution of conflicts of a nature civil.
When a material right (or substantial right) is claimed by one party against another, the call is formed lead, which must be conducted through a system of previously defined rules. This system is precisely civil procedural law, which dictates all the rules of jurisdiction, action and process necessary to resolve this conflict of interest.
In Brazil, civil procedural law is provided, above all, in the Code of Civil Procedure (Law No. 13.105/2015), which covers most civil procedural rules in force. However, standards of this nature are also found in several other laws, such as the Law No. 9,099/95 (Law of Special Courts), Law No. 7,347/85 (Law of Public Civil Action) and many others.
As it is extremely comprehensive, civil procedural law is also applied in a subsidiary manner in procedures of other natures (such as tax, administrative or even criminal) supplementing any absence of standard regulatory authority.
Principles of civil procedural law
Principles are notions that guide the application of the law as a whole. They are present in the legal system in an implicit or explicit way and always represent the values that must be observed by law operators when applying the rules.
The principles of civil procedural law can be constitutional, if they derive directly from the Federal Constitution, or, in all other cases, infra-constitutional.
Constitutional principles of civil procedural law
The Federal Constitution provides for the following principles to be applied in the processes:
Due legal process
Due legal process is based on article 5, LIV of the Federal Constitution. It is the principle that guarantees everyone the right to a fair process, with all the steps provided for by law, including obligations and guarantees.
Due process of law also establishes that for a procedural act to be considered valid, effective and perfect, it must respect all the steps provided for by law.
Adversarial and broad defense
The principles of contradictory and broad defense are provided for in article 5, LV of the Federal Constitution and in articles 9 and 10 of the Code of Civil Procedure.
The adversary system is the right of reply guaranteed to the respondent, at all stages of the process. The full defense ensures that, in filing the response, the respondent can resort to all appropriate procedural tools.
Isonomy
Provided for in article 5, caput and I of the Federal Constitution and in article 7 of the Code of Civil Procedure, the principle of isonomy establishes that all parties must be treated equally in relation to the exercise of rights and duties in the process.
natural judge
The principle of the natural judge is provided for in article 5, LIII of the Federal Constitution and provides that no one will be prosecuted or sentenced except by the competent authority. This principle is reflected in the rules of jurisdiction, as well as determining the impartiality of the judge.
Non-removal of jurisdiction
Also called the principle of access to justice, it is provided for in article 5, XXXV of the Federal Constitution. According to this principle, any rights threatened or injured may be discussed in court.
Advertising
The principle of publicity is provided for in article 93, IX of the Federal Constitution and in articles 11 and 189 of the Code of Civil Procedure. According to him, in order to serve the public interest and ensure the inspection of justice, procedural acts must be public (except those that require judicial secrecy), under penalty of nullity.
speed
Also called the principle of reasonable duration of the process, it is provided for in article 5, LXXVII of the Federal Constitution and in article 4 of the Code of Civil Procedure. This principle establishes that the processes must be concluded in a reasonable time to guarantee the usefulness of the decision.
Infraconstitutional principles of civil procedural law
The infra-constitutional principles of civil procedural law are implicitly or explicitly provided for in the Code of Civil Procedure. Are they:
Device
The operative principle, also called the principle of inertia, is provided for in article 2 of the Code of Civil Procedure. According to him, Brazilian jurisdiction is only initiated upon provocation by the parties. Once activated, the jurisdiction follows the rules of procedure and develops on official impulse.
rational persuasion
Also called the principle of free motivation, it is provided for in article 371 of the Code of Civil Procedure. This principle ensures that the judge can assess the evidence presented in the case according to his personal conviction. It is important to clarify that this freedom to decide according to their convictions is restricted to what was argued and proved by the parties during the process.
Good faith
It is provided for in articles 5, 77, 80, 322, paragraph 2 and 489, paragraph of the Code of Civil Procedure. It is considered one of the basic principles of Brazilian procedural law. According to him, the parties must act with respect and integrity at all stages of the process.
Instrumentality
Provided for in articles 154 and 244 of the Code of Civil Procedure, the principle of instrumentality of forms provides that procedural acts do not depend on a specific form. Thus, whenever an act achieves its purpose, it cannot be considered null due to the way in which it was presented.
Sources of civil procedural law
The sources of law are the ways in which a norm is generated and introduced into the legal system. As in most branches, the sources of civil procedural law are: a law, you mores, a doctrine and the jurisprudence.
The law as a source of law must be understood in a broad sense. Thus, in addition to ordinary, complementary and other types of laws in the strict sense, they are also sources of civil procedural law the internal regulations of the courts and the codes of judicial organization of the States.
See too:
- Civil right
- Third Party Embargoes
- Constitutional principles
- Expiration of term