Carta Forense

In the previous paper, the focus was on the interlocutory relief based on urgency and filed on a preceding basis, which is set forth in article 303 of the new law. However, the analysis of this issue must be finalized because, according to the rule set forth in the head of article 304, the relief granted by article 303 “will become stable if the defendant does not appeal from the decision that had granted it”. It is the so-called stabilization of the interlocutory relief.

This innovative aspect introduced by the CPC in 2015 is the most likely to cause controversies, which is not desirable at all. The enforcement of a new law – especially the one with the dimensions of a new code – carries in itself the risk of uncertainty that may arise from different interpretations of its provisions, and, consequently, from the time that is due for this understanding to become effective. That′s why the advantages resulting from legislative changes should always be considerably higher than the potential damage that will be imposed on the relationships to be ruled by the new law, by the uncertainty that may happen for a specific time. This is true not only to the procedural laws, but, because of their instrumental characteristic in relation to the other branches of the substantive law, they certainly apply.

The first relevant question about the new statute seems to be related to how useful it may be: despite the lack of statistics (that could be sought in similar situations), would it be feasible to assume that the techniques established by the law could bring important advantages to the Brazilian reality? A similar question was already asked in the past, when the monitory action was implemented, in which the merits – at least in the model adopted among us – would result from the possible inertia of the defendant, just like the situation being focused now. Pursuant to the monitory action, the defendant who does not bring a stay of execution against the monitory warrant gives rise to an enforcement order with preclusive effectiveness (article 701, § 1). In this case, if the defendant does not appeal against the interlocutory relief, it will become stable. Once again, the question is: is it possible to expect that among us most of the interlocutory judgments will not be subject to appeals?

If the answer to this question cannot be found easily, perhaps another question could be asked:  would it be really helpful to the system to consent with a court decision which has substantial effects, but is admittedly temporary and, at least to some extent, indefinite? Yes, because once the condition set forth in the head of article 304 occurs, the law establishes that the lawsuit is terminated (§ 1) and it opens the possibility of the decision being “reviewed, reformed or invalidated” by a decision “on the merits”, pleaded in a suitable lawsuit to be brought by “either party” (§§ 2 to 4), for what the law provides a significant period of two (2) years (§ 5). As a matter of fact, in a cryptic way (even though the grounds for the rule may be identified), the law establishes that such a decision “will not be res judicata“. This fact shall allow a new enquiry: would it be really convenient to the system to create such stabilization, which, depending on the side it is regarded, is a mere denial of any kind of stability?

The intention is not to answer such questions, but maybe it would be enough to say that, just considering the potential controversy that such rules tend to create, it would be sufficient to conclude that the legislator′s option was not the luckiest, notwithstanding the good intentions.

In addition to these assumptions, there are some other more assertive things to say about the statute: a system that already offers a pretty extensive list of extrajudicial enforcement decisions (see the list in article 784, not to mention the additional laws); a system which already allows a preceding nature to the effects of the decision based on the evidence, in a considerably broad way (article 311 and following); a model in which, in addition to everything that was mentioned above, had the monitory action affirmed as a remedy able to hasten the enforcement orders (articles 700/701); the rule that an interlocutory relief “becomes stable” – waiting for an eventual lawsuit to reform it – seems to be really excessive and harmful, as it often happens to what is excessive. A new enquiry: having such framework, what is the meaning of providing “stability” to a decision based on a non-exhaustive understanding? Incidentally, there lies another source of controversies that shall be further analyzed.

Another possible criticism may be: to condition the stability of the interlocutory relief to an appeal, in a context where there are general complaints (though sometimes distorted) about the overwhelming amount of appeals does not seem to be something exactly logical. In a system where, in many cases, the superior courts come up with artifices not to hear appeals, to condition the stability of a judgment to this challenge sounds like taking an unnecessary risk of disputes. Although the new code is careful about the situation of an appeal not to be heard (see the sole § of article 932, among others), the fact is that the filing of a bill of review involves a certain risk to the party. Then, without losing sight of the goal of this article, I would venture an interpretation to the head of article 304 (an invitation to those who get delighted with headings …): for the stabilization to become effective, it is enough that the party had filed the appeal, and if, subsequently, that appeal is not heard due to any formal imperfection, this fact will be irrelevant. That is to say: what really matters is the party’s declaration of will against the stabilization. However, if this is really so, there is one more question: would the objection to the claim by the defendant not be enough?

By the way, the procedural situation is odd: the law assumes that the defendant would have opposed the pleading by filing an appeal, but, on the other hand, that the defendant would not have appealed, and, then, the omission would prevail over the first procedural step. Respecting different points of view, it would be more plausible, simple and reasonable to follow the usual path: the requirements of item I in § 1 of article 303 being met, if there was not a possible opposition to the pleading, this would simply be upheld in the judgment on the merits, which, from the outset, would provide the ultimate relief, would become res judicata and, in fact, lead to a stable protection.

The impression that remains– the one that a scientist is allowed to have, as a kind of poetic license – is that the CPC 2015 has accumulated a number of provisions that have been designed for decades in order to honor the social scope of the proceedings by means of techniques that speed up the creation of enforcement orders, but without the awareness that, in some cases, certain changes made other changes unnecessary or, at least, less relevantly useful.

Certainly, in the end, if all the criticism above – always duly respecting the serious and competent work of those engaged directly in the development of the new code – have grounds, then, apparently, there is not much to fear: the provision tends to become less relevant, either because there are more advantageous ways of providing real protection, or because of its great condition to provoke controversies. That is what the optimism that comes with the age tells me.