Retention Schemes and Special Features in Brazilian Law

Posted on Nov 26, 2024 in Law & Jurisprudence

Retention Scheme (CPC art. 542, § 3)

Against Interlocutory Decisions

Retention applies only to interlocutory decisions and occurs at the time of the offense. Retaining the aggravation is the rule for challenging an interim decision. This is maintained because the principle aims to prevent harm and is held until the trial’s conclusion. The decision can be supportive, and you may not want it to be judged. An interlocutory decision causing harm is entered with the wrong instrument. Suppose an interim rule affects one of the Federal Constitution articles. You challenge it with an extraordinary appeal, which is held until the trial’s end, regardless of the outcome. If you lose, you can appeal to the Supreme Court and request the minister to consider your initial special appeal before enjoying their legal arguments, potentially leading to a win without assessing the thesis.

OSO applies to RESP and RE filed against an interim civilian decision.

  • Retention is similar to the retained disorder. It should be reiterated in the RE or RESP against the decision to dismiss the case.
  • The trial of RE or retained RESP awaits the action of RE or RESP against the final decision.
  • Urgency: Injunction innominate (nameless) allows immediate use and appreciation.

Special Feature

Purpose

To enable control over the legality of decisions by state and federal courts and promote uniform interpretation of federal law.

Cabimento (CF, art. 105, III)

Article 105. The Superior Court of Justice shall:

III – Judge, in a special appeal, cases decided in sole or last instance by the Federal Regional Courts or by the courts of the States, Federal District, and Territories, when the contested decision:

  1. Is contrary to a treaty or federal law or denies its validity.
  2. Declares valid a local government act contested under federal law.
  3. Gives a federal law an interpretation different from that assigned by another court.

Setback or Negative Force of a Treaty or Federal Law

  • Reversing (More Comprehensive): Challenging the law or interpreting it inappropriately. Offending the law’s text instead of applying it correctly.
  • Negative Effective (More Restricted): Not applying the law when it should be applied. The setback required by arts. 102, 103, and III may be the letter or the spirit of the law.

Validity of Local Government Act Challenged Under Federal Law

  • The purpose of RESP is preserving Federal Law, not local government acts.
  • If Federal law is violated by a local government act, RESP verifies the offense. If confirmed, federal law overrides.
  • A decision favoring local government act over Federal law indirectly or implicitly violates the Federal Constitution. RE addresses direct offenses.

Interpretation of Federal Law Differs from Another Court

  • RESP addresses divergence in law interpretation to ensure uniformity.
  • The applicant must submit a paradigm (a decision from another court with a different interpretation) and demonstrate that the paradigm’s interpretation is superior.
  • The divergent trials should come from different courts (Precedent 13 STJ).
  • Precedent 13: Divergence within the same court does not justify a Special Feature.
  • The divergence must be present (Summary 83 STJ).
  • No special feature is recognized when the court’s direction aligns with the contested decision.
  • The paradigm decision should not come from the Court of First Instance.
  • Pre-questioning of the matter is required.

Extraordinary Appeal (RE)

Purpose

To bring constitutional violations to the Supreme Court’s attention. The Supreme Court safeguards the Constitution. RE allows diffuse control of constitutionality.

EC 45/04

Added a new requirement for RE eligibility (art. 102, § 3 of the Constitution): general effect. Regulated by Law 11.418/06, which added art. 543-A and 543-B to the CPC.

  • General effect must be demonstrated preliminarily for admissibility.
  • Consideration of relevant economic, political, social, or legal issues beyond the parties’ subjective interests.
  • The constitutional issue should affect many people, impacting a substantial portion of society or relating to values relevant to all or most of society.
  • Non-admission due to lack of general effect requires 2/3 of STF members (8 of 11 ministers) (CPC art. 543-A, § 4).

Cabimento (CF art. 102 III, a, b, and c)

Article 102. The Supreme Court’s essential role is safeguarding the Constitution. It shall:

III – Judge, by extraordinary appeal, cases decided in sole or last instance when the contested decision:

  1. Is contrary to a constitutional provision.
  2. Declares the unconstitutionality of a treaty or federal law.
  3. Considers valid a law or act of local government contested under the Constitution.

Setback to the CF Device

  • Similar to the Special Appeal predicament.
  • No reference to negative effect, but it’s understood to be covered by the setback.
  • Present in the earlier constitution, conditioning RE admissibility on denying the CF device’s validity.
  • A reasonable interpretation of the law, even if not the best, removes the possibility of RE.
  • Today, a decision not giving the best CF performance allows RE, even if reasonable, due to contrariedade.

Unconstitutionality of the Federal Act

  • Diffuse control of constitutionality for treaties or Federal laws.
  • RE is not about rejecting the law or treaty but recognizing its unconstitutionality.
  • Admissibility depends on whether the court declared unconstitutionality.

Validity of Law or Act of Local Government Contested Under the Constitution

  • Equivalent to CF, art. 105, III, b (Special Feature).
  • A reasonable decision favoring the validity of local law over federal law calls for RESP. When facing CF, it’s RE.

Judging Valid Local Law Challenged Under Federal Law

  • Preserves the CF.
  • A decision favoring local law over federal law violates the hierarchy.
  • EC 45/2004.

Attachment of Divergence in RE or RESP

  • Against Supreme Court class action decisions departing from another class, section, or special body’s trial.
  • Against STF class decisions in a special appeal departing from another class or plenary trial (CPC, Article 546).
  • The divergence is not within the judging group but between courts (classes) or between a body and the floor.
  • Not applicable to class decisions in regimental injury (Summary 599/STF).
  • Summary STJ 158: Not applicable to disagreements with Case Class or Section lacking jurisdiction.

Processing

  • Opposition deadline: 15 days from publication.
  • Follows bylaw provisions.
  • The appeal petition must include proof of divergence.
  • Protocol in the secretariat and sent to a reporter.
  • Reporter examines admissibility.
  • If inadmissible, sent to the trial body within 5 days.
  • If admissible, the other party has 15 days to counter-argue, then the feature is scheduled for trial.