Name: FELIPE BARBOSA DE MENEZES
Type: MSc dissertation
Publication date: 29/04/2016
Examining board:
Name |
Role |
|---|---|
| CLAUDIO PENEDO MADUREIRA | Internal Examiner * |
Summary: The Code of Civil Procedure of 2015 updated the rules concerning compulsory appeal, bringing about important innovations in this legal instrument, especially with regard to the limits of procedural prerogatives. This paper aims to discuss compulsory appeal under the new CCP, in order to demonstrate specifically that the legislators choice to determine their unsuitability in cases with sentences that reproduce binding guidelines signed under the administrative aegis of the public entity involved in the litigation (Art. 496, par. 4) allows for the compatibility between the aforementioned legal instrument and the jurisdictional control exercised by public attorneys over legal action practiced by the Brazilian Administration, which also encompasses the framework of rights and interests presented in court by public authorities that disregard the law, as interpreted and applied by the jurisprudence of Brazilian courts. The problem presented by the previous legal regime was that taking a case back to court as mandated by compulsory appeal, even when public authorities found themselves in favor of the plaintiffs case (by withholding all appeals and defense, recognizing the plaintiffs complaint, celebrating agreements, etc.) prevented the lawsuits successful resolution in the first instance, which hampered the efficacy of public attorneys jurisdictional control in their litigative duties. This issue seems to have been corrected by the CCP of 2015, specifically by Article 496, paragraph 4, item IV, which bars the use of compulsory appeal in returning a case to court over sentences that overturn the legal arguments made by the public attorneys, thus allowing for a disputes resolution in the first instance. Keywords: Code of Civil Procedure of 2015. compulsory appeal. Binding administrative guidelines. Administrative Precedents. Jurisdictional control. Public Advocacy.
