by Daniela Sigliano and Livia Balbino*

In recent years there have been several improvements to the Brazilian Civil Procedure Legislation aimed at improving the effectiveness of judicial decisions.

One of the enhancements focused on highlighting the consolidations between ordinary proceedings and collection proceedings. The power od enforcement achieved by judicial sentences as well as the progress of the procedure of expropriation of debtors' assets are considered effective tools offering more strength to coercive judicial measures issued with the purpose of recovering capital invested by creditors.

These recent improvements have led to an important evolution in the jurisprudence of the Superior Court of Justice - STJ, increasing the effectiveness of its implementation of civil collection proceedings.

Several of these developments brought more authority to the Brazilian Judiciary to enforce decisions and to obtain consistent results through the filing of civil collection proceedings. The opportunity to seize a debtor’s property, regardless old the property’s location is one of them.

Another example of the efficiency of the Brazilian Civil Procedure Legislation in protecting the creditor as a plaintiff is the right to request a certificate enabling them to apply for registration before the Real Estate Record Officer, constraining the debtor’s assets.

Such developments of Brazilian Civil Procedure legislation directly influence the jurisprudence of the Brazilian Superior Courts, with a shifting of the traditional understanding of the civil collection proceedings. Currently the measure is considered a mechanism in favour of enforcement of the creditors' interests. This is in contrast to former principles where civil collection proceedings were filed in the least burdensome way to the debtor.

Diligent decisions on tax matters questioned before Superior Courts.

Repercussão Geral (General Repercussion) is an efficient tool utilized specifically by ministers of the Supreme Court to improve the consistency of their decisions. In fact, when as extraordinary appeal is filed before the Supreme Court a request for the recognition of 'General Repercussion' is an alternative legally admitted with regards to certain matters sub judice, as a condition preceding the examination of the merits of the claim by the Supreme Court.

The General Repercussion will be examined by the Plenary of the Supreme Court, using a computerized system with electronic voting, and may be recognized by the Supreme Court in cases where acknowledgment social, economic, political and legal perspective of the issue surpasses the individual interest of the parties.

Ass soon as the General Repercussion is established, the Supreme Court may analyze the merits of the Extraordinary Appeal and grant a decision considered as a precedent or a guideline for use by lower courts in similar law suits.

It is important to highlight that, in view of the recognition of a matter of General Repercussion it is possible to grant a 'Binding Precedent' to be enforced by the Supreme Court.

The Binding Precedent, has a binding effect on the decision granted, committing lower judicial courts and public governmental authorities to enforce the decision exactly on the terms provided by the Supreme Court.

Although the General Repercussion and the Binding Precedent may be considered effective tools enabling the improvement of Brazilian jurisdictional protection, adverse effects may occur derived from their enforcement. This is why the lawsuits submitted to the Supreme Court with similar arguments may trigger a decision issued by the Court based on a single argument and prevent the hearing of any other arguments which nay be as important as the previous one.

There is also the risk of granting decisions based on General Repercussion and Binding Precedent in cases that are not related to the matters of discussion, causing serious damages to litigants.

In order to avoid negative effects it is necessary to organize a preventive monitoring of litigations with more effective performance of responsible lawyers. Those lawyers have a duty to be more combative and attentive to the judicial measures which may cause an adverse impact on their clients' rights during the judicial claims.

It is possible to conclude that Brazilian Civil Procedure Law is undergoing important change, wich will lead to judicial claims being processed more promptly, more effectively, and towards the creditor's best interests.

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* Daniela Sigliano and Livia Balbino are lawyers at Mitico & Sigliano law firm.

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