Procedural assumptions are the requirements that a process must meet to be considered valid and existing.
The list of procedural assumptions is extracted from the law and systematically studied by the doctrine. According to the classifications most used by scholars, a procedural assumption can be:
- subjective or objective;
- existence or validity.
Subjective procedural assumptions
Subjective procedural assumptions concern the subjects of the process, that is, the parties and the judge. With regard to the judge, the subjective procedural assumptions are: investiture and impartiality.
Investiture
Investiture is the ability given to a subject to exercise jurisdictional power on behalf of the State. The public agent invested in the jurisdiction is the judge of law, who now represents the State in the resolution of conflicts.
In Brazil, the investiture can occur in three ways:
- public tender, provided for in article 93, I of the Federal Constitution;
- indication of the Executive Power through the fifth constitutional, provided for in article 94 of the Federal Constitution;
- appointment to compose the Federal Supreme Court, provided for in article 101, sole paragraph of the Federal Constitution.
Investiture is a procedural presupposition of existence, considering that the absence of an invested judge implies the inexistence of a process. There is no process without a judge.
Impartiality
The judge needs to act impartially in the process. It is not admitted that the judge has a particular interest in the conflict in order to prefer one or another outcome. Impartiality is a procedural assumption of validity, because even if the judge acts biased, the process still exists legally.
The judge's impartiality can be argued through an exception of suspicion within 15 days of becoming aware of the fact, as provided for in article 146 of the New Code of Civil Procedure:
Art. 146. Within 15 (fifteen) days, counting from the knowledge of the fact, the party will allege the impediment or suspicion, in a specific petition addressed to the judge of the case, who will indicate the basis of the refusal, being able to instruct it with documents on which the allegation is based and with a list of witnesses.
With respect to the parties, the subjective procedural assumptions are: ability to be a party, ability to be in judgment and postulatory ability.
Ability to be a part
The ability to be a part refers to the ability to enjoy and exercise rights and duties. It is not to be confused with the ability to stand in court, considering that in some cases (such as incapable) a subject may have rights and duties but cannot be in court for needing a representative
The ability to be a party is a procedural presupposition of existence because, if one of the parties does not enjoy rights and duties (for example, a dead defendant), the process is considered non-existent.
Ability to be in judgment
Also called procedural capacity or legitimacy. ad processum, consists of the ability of the parties to perform legal acts within the process.
In cases where there are relatively incapable parties (over 16 and under 18, habitual drunks, addicted to toxic, prodigal and subjects who cannot express their will), the procedural capacity can be supplied through assistants.
In cases where there are absolutely incapable parties (under the age of 16), the procedural capacity can be supplied through representatives. With respect to legal and formal entities, these must also be represented in court.
The ability to stand in court is a procedural assumption of validity that can even be remedied within a period determined by the judge.
postulative capacity
The postulatory capacity is the proper qualification in the Bar Association by the legal representative of the parties. It is waived in the Special Civil Courts (in cases with a value of less than 20 minimum wages), in the Habeas Corpus and in the Right Action of Unconstitutionality.
The postulatory capacity is a procedural assumption of validity, which can be remedied in the event of a defect.
Objective procedural assumptions
Objective procedural assumptions are the conditions of the process that do not involve the subjects of the process. They are divided into: extrinsic and intrinsic.
Extrinsic objective procedural assumptions
Extrinsic objective procedural assumptions are also called negative procedural assumptions, as they are external factors to the procedural relationship, whose existence, if verified, invalidate the process. Thus, negative assumptions need to be absent for a process to be valid.
The extrinsic objective procedural assumptions (negative assumptions) are:
thing deemed material
The material res judicata is the immutable effectiveness of a decision on the merits on the object of the dispute. If a certain right has already been decided by the Judiciary, a new process that seeks to re-discuss it is invalid.
Lis pendens
Lis pendens is the preexistence of an identical cause (same parties, request and cause of action), still pending judgment.
For a case to be valid, there must be no lis pendens.
Peremption
Peremption is loss of the right to sue. Occurs when the author abandons the action three times.
If in the course of an action it is found that the right is perempto, the process is invalid. Under criminal law, peremption occurs in accordance with article 60 of the Code of Criminal Procedure.
arbitration agreement
If within the scope of the arbitration there has already been a decision on the matter discussed in the Judiciary, the process is invalid.
Intrinsic objective procedural assumptions
Intrinsic objective procedural assumptions are internal elements of the process. They are: demand, suitable initial petition, valid citation and formal regularity.
Demand
The demand is the very act of triggering the jurisdiction. Considering the principle of inertia, the State only exercises jurisdictional power through provocation, which occurs through the presentation of the demand.
Obviously, the demand is a procedural assumption of existence, considering that without it the process does not exist.
Apt initial petition
The initial petition is the way in which the demand is taken to the Judiciary Branch. For this reason, it is natural that she needs to complete some formalities provided for by law. According to article 330, paragraph 1 of the New Code of Civil Procedure:
The initial petition is considered inept when:
- I - lack of request or cause to ask;
- II - the request is indeterminate, except for the legal cases in which the generic request is allowed;
- III - from the narration of the facts the conclusion does not follow logically;
- IV - contain orders that are incompatible with each other.
The proper initial petition is a procedural assumption of validity.
valid quote
A valid citation is the act that completes the procedural relationship by bringing the respondent to the process. It is essential that the citation occurs and that it is valid, complying with legal provisions.
A valid citation is a procedural assumption of validity, which can be remedied in case of defect.
formal regularity
The process must follow as provided by law in order to provide security to the parties. However, if a certain procedural act achieves its purpose even if to the detriment of the formality provided for by law, it must be considered valid, according to the principle of instrumentality of forms.
The formal regularity of the process is a procedural assumption of validity.
See too:
- civil procedural law
- Civil right
- Process
- Expiration of term
