Supreme Federal Court declares unconstitutional rule prohibiting judges from adjudicating actions involving clients of relatives’ law firms
In a direct action for the declaration of unconstitutionality filed by the Brazilian Magistrates Association, the Supreme Federal Court ruled on the unconstitutionality of Article 144, VIII, of the Civil Procedure Code, which prohibited judges from performing their duties in cases where one of the parties was a client of a law firm owned by a relative, even if represented by a lawyer from another firm in that particular case.
According to Minister Gilmar Mendes, the impartiality sought by Article VIII was already adequately safeguarded by Article III and § 3 of the same article, which already prevented a judge from performing in cases where the public defender, lawyer, or member of the Public Prosecutor’s Office was a relative or a member of a law firm that had a family member, even if not directly involved in the case.
Meanwhile, Minister Cristiano Zanin stated that the control intended by the now unconstitutional provision is “disproportional,” affects third-party interests, and creates an “unjustified distinction between public and private attorneys.”
(Supreme Federal Court, Direct Action for the Declaration of Unconstitutionality No. 5953, Rapporteur Justice Edson Fachin, ruled on 08/22/2023)
Superior Court of Justice rules that a copy of the executive title suffices for the monitory action, which applies to titles subject to circulation
The Third Panel of the Superior Court of Justice established that a mere copy of the executive title suffices to propose a monitory action, which is an action based on a non-executory written instrument since there is no legal distinction regarding the originality of proof. The only requirement for this kind of action is that it should be based on a written document that allows for the verification of the likelihood of the claim.
The Third Panel deemed that even a copy of a negotiable instrument subject to circulation would suffice to support the monitory action, as long as there had been no actual circulation. In such cases. According to the decision, it is the respondent’s responsibility to prove that the instrument had circulated and that the claimant is no longer the creditor or, at least, he must present reasonable evidence of circulation.
(Superior Court of Justice, Special Appeal No. 2,027,862/DF, Rapporteur Justice Nancy Andrighi, Third Panel, ruled on 03/14/2023)
Superior Court of Justice rules it is possible to replace levy with judicial guarantee insurance without the creditor’s agreement
The Third Panel of the Superior Court of Justice upheld the São Paulo Court of Justice’s decision that, even without the creditor’s agreement, it is possible to replace levy with a judicial guarantee insurance in an execution action.
The substitution was granted by the trial judge, under the rationale that this measure is allowed to the debtor, even without the creditor’s acceptance, as long as there is a 30% increase over the debt’s value. Minister Nancy Andrighi highlighted that Article 835, paragraph 2, of the Civil Procedure Code, equated bank surety and judicial guarantee insurance to cash. Hence, the creditor could only reject the substitution of cash with these guarantees in case of insufficiency, formal defect, or inadequacy of the offered judicial guarantee insurance.
The decision is highly relevant in the legal landscape as it establishes a significant precedent regarding the possibility of substituting levy with judicial guarantee insurance, even without the creditor’s consent, as long as legal requirements are met.
(Superior Court of Justice, Special Appeal No. 2,034,482/SP, Rapporteur Justice Nancy Andrighi, Third Panel, ruled on 03/21/2023)
Superior Court of Justice rules it is defense in an Action for Early Production of Evidence
The Third Panel of the Superior Court of Justice ruled that the provision stated in Article 382, paragraph 4, of the Civil Procedure Code, disallowing defense or appeals in the action for early production of evidence, cannot be literally interpreted and that effective defense procedures should be allowed in such cases.
In the specific case, the judge had instructed a party to present a document, warning that no defense or appeal over it would be admitted. The decision was upheld at the appellate level but was overturned by the Superior Court of Justice. The Rapporteur, Minister Marco Aurélio Belizze, asserted that “issues inherent to the specific object of the action” could “be raised by the party in its defense,” and that the restriction of Article 382, paragraph 4, of the Civil Procedure Code, cannot, in any way, lead to an interpretation that eliminates the defense process.
(Superior Court of Justice, Special Appeal No. 2,037,088/SP, Rapporteur Justice Marco Aurélio Belizze, Third Panel, ruled on 03/07/2023)
Superior Court of Justice rules that a claim not proofed in the judicial reorganization proceeding is subject to the monetary update limit
Even a claim not proofed in the judicial reorganization proceeding, which will be collected after the procedure’s closure, must observe the monetary update limit imposed on those proofed, as it must also comply with the judicial recovery plan, according to the Third Panel of the Superior Court of Justice.
The practical outcome is that, between the request for the judicial reorganization and the actual credit payment, the non-proofed claim will also be equally adjusted monetarily based on the terms and indices stipulated in the plan.
(Superior Court of Justice, Special Appeal No. 2,041,721/RS, Rapporteur Justice Nancy Andrighi, Third Panel, ruled on 06/20/2023)
CAM AMCHAM allows emergency arbitrators for Early Production of Evidence in Arbitration
CAM AMCHAM issued Administrative Resolution No. 3/2023 to permit the use of an emergency arbitrator procedure for the early production of evidence in arbitration.
Consequently, a party needing to produce evidence in advance, such as documentary, expert, or testimonial evidence, may request the initiation of the emergency arbitrator procedure, under Article 21 of the Regulations, when the evidence to be produced (i) enables self-resolution or another conflict resolution method. or (ii) precedes the knowledge of facts that may justify or prevent the filing of a lawsuit.
The emergency arbitrator cannot perform as an arbitrator in the main arbitration, and the decision rendered regarding the early production of evidence shall be binding on the parties and any subsequent arbitration.
(CAM AMCHAM, Administrative Resolution No. 3/2023, promulgated on 08/07/2023)
Superior Court of Justice rules that failure to replace a party in the case of its death generates relative nullity
The Third Panel of the Superior Court of Justice ruled that in the event of the subsequent death of a party, the failure to replace it by the estate, according to Article 313, I, of the Civil Procedure Code, generates relative nullity, and the nullity can only be declared if the irregularity causes procedural harm to the estate.
With this understanding, the Panel dismissed the appeal of an heir seeking to annul the valuation of property conducted after the death of the property’s titleholder. This occurred because there was an omission from the interested parties in informing the death in the process, which would preclude claiming harm and, consequently, nullity.
(Superior Court of Justice, Special Appeal No. 2,033,239/SP, Rapporteur Justice Marco Aurélio Belizze, Third Panel, ruled on 02/14/2023)
Superior Court of Justice upholds the incidence of corporate income tax and social contribution on contractual default interest
The First Panel of the Superior Court of Justice upheld that Corporate Income Tax (IRPJ) and Social Contribution on Net Profit (CSLL) should be applied to contractual default interest. This decision aligns with the thesis set in Theme 878 of the Court, where the nature of default interest is the same as deemed lost profits.
The Panel emphasized that the thesis established in Theme 878 of the Superior Court of Justice remained preserved even after the thesis set by the Supreme Federal Court in Theme 962, recognizing the unconstitutionality of levying IRPJ and CSLL on amounts related to SELIC interest rate received due to tax refund.
(Superior Court of Justice, Internal Appeal in Special Appeal No. 2,002,501/RJ, Rapporteur Justice Benedito Gonçalves, First Panel, ruled on 08/08/2023)
The São Paulo State Assembly approves bill increasing judicial fees at the São Paulo Court of Justice
The São Paulo State Assembly (Alesp) passed Bill No. 752/2021, submitted by the São Paulo Court of Justice, foreseeing modifications to the Law of Judicial Fees (State Law No. 11,608/03), aiming to raise judicial fees.
Among the approved changes are: (i) an increase in the initial cost of action distribution from 1% to 1.5% of the case value, (ii) an increase in action distribution costs for enforcement actions to 2% of the case value, (iii) a rise in the fee for filing an interlocutory appeal to BRL 513.90, and (iv) the establishment of a fee for initiating the satisfaction of judgment at 2% of the credit amount to be satisfied. The Bill also stipulates that, for the calculation of the judicial fee at any stage of the process, the case value must always be monetarily adjusted.
The Bill remains pending approval by the São Paulo State Governor.
(São Paulo State Assembly, Bill No. 752/2021)
Superior Court of Justice rules on Theme 1069, affirming that health plans must cover plastic surgery for post-bariatric patients
The Superior Court of Justice ruled on Theme 1069, addressing the obligation of Health Plans to cover plastic surgery for post-bariatric patients. According to the Court, plastic surgeries of a reparative or functional nature indicated by the physician for post-bariatric patients must be obligatory coverage by health plans as a continuation of morbid obesity treatment.
The Superior Court of Justice clarified that if there are reasonable and justified doubts regarding the procedure’s essentially aesthetic nature, the health plan operator may resort to a medical board to resolve the disagreement, covering the professionals’ fees. If the medical board’s result is unfavorable to the surgical procedure’s indication, the beneficiary can still file a judicial motion, and the judge will not be bound by the medical board’s opinion.
(Superior Court of Justice, Theme 1069, Rapporteur Justice Ricardo Villas Bôas Cueva, Second Section, ruled on 09/13/2023)