Post by xyz3800 on Feb 28, 2024 5:30:39 GMT -5
The new Code of Civil Procedure, promulgated in March , resulted in substantial changes in several aspects of the procedural discipline in force at the time; Among them, the hypotheses of suitability of the interlocutory appeal stand out . According to article 522 of the 1973 Code of Civil Procedure, with the exception of sentences and orders of mere expediency, decisions made throughout the process could be compared through the appeal of an instrument of appeal. In the opposite direction, in relation to what was foreseen in the previous code, article 1,015 of the new Code of Civil Procedure innovated by restricting the scope of the interlocutory appeal only to the hypotheses expressly listed in the sections and in its sole paragraph. The practical effect of the current legislative policy is that matters whose content is not provided for in article 1,015 can only be raised in reasons or counter-reasons of appeal [1] ; therefore, only after the sentence.
This is a change that would aim to “preserve the trial judge's powers to conduct the process and simplify the development of the common procedure” [2] , in addition to valuing the structure of the common procedure based on orality , a principle that prevails for prioritizing the non-appealability of decisions. However, the rigidity of the wording contained in the aforementioned article has been causing questions and turbulence within the Judiciary, since Exit Mobile Number List there are matters not covered by article 1,015 that require immediate appeal to the court, as well as special processes and procedures whose peculiarities prevent the postponement of the discussion of a certain matter until after the sentence, as is the case with the judicial recovery process. In this scenario, the STJ has been systematically attenuating the rigor of the hypotheses regarding the suitability of the appeal under examination, allowing it to be filed in cases not expressly provided for in article 1,015 of the CPC.
The understanding set out by the STJ in the judgment of REsp 1.704.520/MT and REsp 1.696.396/MT presented the thesis of “mitigated taxation” of the hypotheses of suitability of the interlocutory appeal, whereby the interposition of an interlocutory appeal is “allowed of instrument when the urgency resulting from the futility of judging the issue in the appeal is verified”. Within the scope of the judicial recovery process, such a decision may be important to substantiate the validity of certain hypotheses that, by their nature, could not wait for the preliminary appeal to be argued. Therefore, jurisprudence already understands that it is appropriate to file an appeal in the face of a decision that defers the processing of recovery, regardless of the lack of express legal provision in both the CPC and Law 11,101/2005 [3] . Still regarding the recovery processes, it is worth noting that the STJ, in a recent ruling, had already established the appropriateness of an appeal in decisions taken during the course of the aforementioned processes.
This is a change that would aim to “preserve the trial judge's powers to conduct the process and simplify the development of the common procedure” [2] , in addition to valuing the structure of the common procedure based on orality , a principle that prevails for prioritizing the non-appealability of decisions. However, the rigidity of the wording contained in the aforementioned article has been causing questions and turbulence within the Judiciary, since Exit Mobile Number List there are matters not covered by article 1,015 that require immediate appeal to the court, as well as special processes and procedures whose peculiarities prevent the postponement of the discussion of a certain matter until after the sentence, as is the case with the judicial recovery process. In this scenario, the STJ has been systematically attenuating the rigor of the hypotheses regarding the suitability of the appeal under examination, allowing it to be filed in cases not expressly provided for in article 1,015 of the CPC.
The understanding set out by the STJ in the judgment of REsp 1.704.520/MT and REsp 1.696.396/MT presented the thesis of “mitigated taxation” of the hypotheses of suitability of the interlocutory appeal, whereby the interposition of an interlocutory appeal is “allowed of instrument when the urgency resulting from the futility of judging the issue in the appeal is verified”. Within the scope of the judicial recovery process, such a decision may be important to substantiate the validity of certain hypotheses that, by their nature, could not wait for the preliminary appeal to be argued. Therefore, jurisprudence already understands that it is appropriate to file an appeal in the face of a decision that defers the processing of recovery, regardless of the lack of express legal provision in both the CPC and Law 11,101/2005 [3] . Still regarding the recovery processes, it is worth noting that the STJ, in a recent ruling, had already established the appropriateness of an appeal in decisions taken during the course of the aforementioned processes.