Motion for clarification or motion for clarification is a type of appeal used in court proceedings to ask the judge to clarify certain points of a decision given by him.
Motions for clarification can be used when there is any doubt, omission or contradiction in the decision made by the judge or the Court. By requesting motion for clarification, the judge can also make some changes to the decision.
The appeal is provided for in art. 1022 of the Code of Civil Procedure:
Art. 1.022. Embargoes for clarification against any court decision are applicable to:
I - clarify obscurity or eliminate contradiction;
II - to make up for the omission of a point or question on which the ex-officio judge should rule or at the request;
III - correct material error.
Single paragraph. The decision that:
I - fail to comment on the thesis established in the judgment of repetitive cases or in an incident of assumption of jurisdiction applicable to the case under judgment;
II - engages in any of the conducts described in art. 489, §1º.
Term of motion for clarification Code of Civil Procedure
The deadline for filing motions for clarification is 5 days, in accordance with the Code of Civil Procedure (Law No. 13.105/15). The deadline for the judge to judge the embargoes is also 5 days.
Deadline for declaration embargoes Code of Criminal Procedure
In the Criminal Procedure Code (Law No. 3.689/41) the deadline for motions for clarification is of 2 days from the date of publication of the decision. Because it has such a short term, the CPP embargo is also known as a "little embargo".
Motions for clarification with infringing effects
Motions for clarification with infringing effects are those that seek to change the content of a decision through the hypotheses of appropriateness of motion for clarification: contradiction, error or omission.
It is important to know that the main purpose of motion for clarification is not to change the decision made by the judge. The goal is clarify any aspect of the decision that was omitted, contradictory or simply wrong. However, there are cases in which the omission, contradiction or error may lead to a change in the content of the decision. It is in these cases that the motion for clarification may have infringing or modifying effects.
Hypotheses for applicability of motion for clarification
The hypotheses of applicability of the motion for clarification are:
obscurity
Obscurity happens when the decision is not made in a clear and objective way. In this case, the lack of clarity in the decision can make it not well understood.
Contradiction
The contradiction applies when the decision presents points that are not in agreement with each other or if the conclusion is not compatible with the legal basis of the sentence. That is, what was said in the sentence is not in accordance with the law used for the case.
Omission
Omission can happen in two ways. In the first case, the judge may fail to analyze any issue that was raised by one of the parties to the process. In the second case the judge does not decide on facts that he has a duty to decide.
material error
Motions for clarification can also be used in cases where it is possible for the judge to correct material errors and inaccuracies in the decision.
They may be material errors: typing errors, errors in the names of the parts or in the calculation of values. The material error does not change the content of the decision, it only corrects small flaws that do not affect the content of what was decided.
See too:
- Infringing embargoes
- Third Party Embargoes
- Motions to execution