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Marcelo has been working for almost 20 years in the intellectual property field. He is Vice-President of Intellectu[...]read +
by Marcelo Mazzola
September 17, 2019
The CPC/15 raised the adversarial system to an infra-constitutional principle, consolidating the duty of judicial grounding.
In this regard, in addition to ensuring “effective adversarial proceedings” (Article 7) and of appropriately groundingtheir decisions(Articles 11, 489, §1, and 1,022, sole paragraph and items I and II), judges are prohibited from handing down a decision against one of the parties without that party having been previously heard (with the exception of urgent injunctions and injunctions for procedural speed due to compelling evidence, in addition to the monition rule in Article 701).
In addition to which, judges are forbidden from deciding, at any instance of jurisdiction, based on grounds with respect to which the parties have not been given the opportunity to express their opinion, even if it deals with a matter that should be decided on a judge’s own initiative (Article 10). The idea is to avoid so-called surprise decisions.
Despite the undeniable advances – at least in the theoretical realm -, in practice some attempts to deprive such normative commands of their strength, whether through the creation of new interpretative filters or through the consolidation of guidelines contrary to the spirit of the CPC/15, have already been noticed.
In this brief article, the idea is to analyse two specific questions: i) the “remodelling” of the famous saying (the judge is not obliged to answer all the arguments raised by the parties); and ii) the STJ’s interpretation of the application of Article 10 of the CPC/15.
Very well, who has never come across the statement that “the judge is not obliged to express an opinion on all issues raised by the parties”? It is practically a procedural mantra.
It so happens that in light of Article 489, §1, IV, of the CPC/15, a decision that “does not face all the arguments set out in the proceedings that are capable, in theory, of impairing the conclusion reached by the judge” is not considered to be grounded. Thus, in order not to flirt with illegality, the courts started to incorporated a constraint (“when sufficient reason has been found to hand down a decision”or “when satisfactory motivation to settle the dispute has been found”), which, however, does not legitimise anything whatsoever.
Now, authorising judges not to analyse the arguments put forward by the parties when on their own they have already found sufficient reason to decide, means disregarding the influence of the adversarial system and valuing judicial discretion. Needless to say, if a judge has accepted, for example, time-barring by statute of limitations argued by the defendant, the alleged damages suffered (time-barred) by the claimant and the respective juridical arguments need not be analysed. What cannot happen, however, is that a judge generically refuses to examine the arguments raised by the parties in considering that he has already found sufficient reason to base his or her decision.
Another situation that generates some disquiet involves the application of the mentioned Article 10. In some decisions, the STJ has been disregarding the allegation of a surprise decision, using the argument – somewhat exaggerated, let us say incidentally – that it makes no sense to force the judge
to hand down “an order prior to the decision listing all legal provisions that in theory could apply to the resolution of the case.”
According to the STJ, although the parties should have the opportunity to express an opinion on the facts, they do not need to have been previously notified when it deals with a matter of law, as it is the duty of the judge to rule on “matters and issues regulated by the legal system and that apply to the analysed case.”
Thus, an attempt by the STJ to try to remove juridical grounds from the scope of application of Article 10 of the CPC/15, along the same lines as Statement 1 by ENFAM. At this point, some observations should be made.
Initially, it should be highlighted that the said legal provision enshrines the duty of consultation (a facet of the duty of cooperation – Article 6 of the CPC) and has the ability to prevent the judge from invoking juridical norms and rules not raised by the litigating parties, treading a completely new path without any previous cue.
It should be clarified that the duty of consultation does not deprive judges of the power to elect the juridical rule applicable to the case, but it obliges them at least to afford the parties the opportunity to influence and participate in the formation of their conviction. Also, judges can perfectly well change their mind after hearing the parties and on further reflection.
Thus, the legal maximiura novit curiagains a new guise, which, incidentally, is endorsed in Statement no. 282 of the Permanent Forum of Civil Proceduralists: “in order to decide based on a normative framework that is different from that invoked by the parties, the judge should observe the duty of consultation, set out in Article 10”.
Still on this theme, it should be recorded that the STJ has been differentiating between “legal grounds” and “juridical grounds” to remove the need for subpoenaing the parties to express their opinions on grounds that have never been previously discussed, as determined by Article 10 of the CPC/15.
In a case in which the starting point for a period statute of limitations (date of injury or awareness of damage by the holder) was discussed, the STJ held that the local court was mistaken in applying Article 206, §3, V, of the Civil Code (period of 3 years), maintaining that the correct statute of limitations period was 10 years, in light of Article 205 of that law.
A small point: at no time in the proceedings had the parties discussed the statute of limitations period per se(the relevant legal provisions had not even been debated and explored in the special appeal), but only its respective starting point, a topic that also came to be analysed in the STJ’s decision.
In a motion for clarification, the appellant alleged that the grounds adopted by the STJ had never been considered by the parties and that, therefore, a true surprise decision had been handed down, in violation of Article 10 of the CPC/15.
However, the reporting Justice Isabel Gallotti highlighted that “it does not matter that the parties did not agree on the application of a ten-year period or even agreed on the application of a three-year period”. In the judge’s view, “there was a wide discussion about the statute of limitations throughout the lawsuit, and the topic was subject to an appeal”.
In the vote, a distinction was also made between “legal grounds” and “juridical grounds”, with it being stated that the grounds referred to in Article 10 of CPC/15 is “the juridical grounds – a factual circumstance qualified by law, on which the claim or defence is based, or which may have an influence on the decision, even if it supervenes the filing of the lawsuit – it is not to be confused with legal grounds (provision of law governing the matter)”.
That is, in the STJ’s view, when dealing with legal grounds, the judge does not need to notify the parties before deciding and there is no need to speak of a surprise decision. In fact, the provisions of Article 10 of the CPC would only apply when juridical grounds not raised and previously debated by the parties were invoked.
This understanding has been reiterated in more recent decisions of the STJ.
There is some concern here: this interpretative line by the STJ is extremely tenuous. This is because the analysis of juridical grounds (“a factual circumstance qualified by law”, in the words of the reporting Justice) invariably involves the analysis of the respective legal grounds. Thus, under the maxim of iura novit curia(it is the judge’s responsibility to apply “legal grounds”), the STJ may almost always dispense with notifying the parties, even in dealing with a rule that has never been discussed before in the proceedings.
Although judges know the Law, this does not mean that they can impose an unprecedented legal framework without first hearing the parties.
As has been stated, although judges may naturally be acquainted with a rule not invoked by the parties, they cannot decide on the issue without the parties first having been notified. Indeed, “authorisation to know naturally, however, is not authorisation to decide without prior adversarial proceedings.”
It should be recorded, however, that when the parties debate the text from which the norm or the norm itselfemanates (a result of the interpretation of the text), without indicating the respective legal provision, there is, strictly speaking, no need to apply Article 10 of the CPC. For example, if the parties debate the defendant’s lack of standing in ordinary proceedings but fail to mention the relevant legal grounds (Articles 17, 485, VI, 525, §1, II, etc.), it is evident that the judge may invoke them directly, since the topic in question has been widely discussed.
While in the case judged by the STJ (time-barring by statute of limitations), although the parties had discussed the starting point of the statute of limitations period, they had never debated about the period per se(3 years, 5 years or 10 years, etc.). In this hypothesis, it is a different rule(thus belonging to “legal grounds”), and not merely the invocation of the legal provision.
In our view, the debate on any issue linked to statute of limitations does not, in the abstract, authorise analysis of any other related issue (for example, the suspension or otherwise of the statute of limitations period; the applicable statute of limitations period itself, among others), without the parties being previously notified, under penalty of reducing the scope of Article 10 of the CPC.
As is well known, for an adversarial system genuinely tinted with the colours of the cooperative model of proceedings, it is essential for the parties to have the right to influence the construction of the judicial decision effectively through active participation.
The issue is even paradoxical: if the grounds are not debated and faced by the local courts, special appeals at this point will not be admitted for lack of pre-questioning of the topic (Statements of Precedents 211, 282 and 356 of the Supreme Federal Court(STF)). Now, if the STJ, for some reason, decides to consider the matter, it is enough to admit the appeal and judge the proceedings, applying the law (Article 1,034 of the CPC), without providing the opportunity for the parties to express their opinion beforehand. An inconsistency that, in practice, increasingly engenders a surprise decision.
In our opinion, Article 10 of the CPC/15 must be strictly observed by the STJ when a) the parties have not had the opportunity to express their opinion on the grounds that will constitute the basis for the decision or any of its chapters; and b) there has been no previous debate on the juridical framework of a particular issue, even if the underlying topic has been previously subject to expression of opinion.
In short, the important thing is that the content of the ruleis subject to debate. The analysis of the macrotopic cannot automatically absorb the examination of the relevant microissue, even more so when the parties have not been previously notified. Not least because, in dealing with a structuring norm of civil procedure – a true guarantee for those subject to jurisdiction – it is not possible to make a reductionist interpretation of Article 10, depriving and dispossessing the rule of its potentiality.
 The duty of grounding is widespread throughout the CPC/15. See, for example, Articles 11, 12, §2, IX, 173, §2, 370, sole paragraph, 373, §1, 426, 489, §§ 1 and 2, 647, sole paragraph, 919, §2, 927, §4, 980, sole paragraph, 1,013, §4, 1,021, §4, 1,022, sole paragraph and items I and II, 1,026, §2, 1,067 (which provided new wording to Article 215 of the Electoral Code – see especially §6), among others.
 Grounding is an act of responsibility, a political and democratic guarantee, indispensable to afford democratic legitimacy to judicial decisions. Although he or she does not agree with all the arguments put forward by the parties, a judge cannot decide without considering them and must explain why he has accepted or rejected them.
 In line with Article 93, IX, of the Federal Constitution.
 For Alexandre Câmara, “there is a surprise decision in those cases in which a judge hands down a decision making use of grounds (factual or legal) that has not been submitted to the discussion between the participants in the proceedings.”CÂMARA, Alexandre Freitas. O Novo Processo Civil Brasileiro [New Brazilian Civil Procedure]. São Paulo: Atlas, 2015, page 11.
 Some statements approved by the National School for the Training and Improvement of Judges (ENFAM) obscure the guarantee of effective adversarial proceedings, thereby forcefully eclipsing the duty of judicial grounding. For the purposes of this article, the following Statements should cited: Statement 1 (The“grounding” referred to in Article 10 of CPC/2015 is understood to be the factual substratum that guides the claim, not the juridical framework attributed by the parties); Statement 3(It is unnecessary to hear the parties when their expression of opinion cannot influence the resolution of the case)”; and Statement 6(A decision supported on juridical grounds, even if different from those presented by the parties, is not a surprise decision, provided that they are based on evidence submitted in the adversarial system”).
 STJ, EDcl in MS 21.315/DF, Reporting Justice (Invited Justice of the Federal Regional Court of the 3rdRegion (TRF-3), First Section, electronic Justice Gazette (DJe) 15 June, 2016.
 STJ, AgInt in AREsp 1.341.142/RS, Reporting JusticeMarco Buzzi, Fourth Panel, DJe 04 February, 2019.
 STJ, EDcl in REsp 1.280.825/RJ, Reporting Justice Isabel Gallotti, Fourth Panel, DJe 01 August, 2017.
 STJ, AgInt in AREsp 1.124.598/SE, Reporting Justice Luis Felipe Salomão, Fourth Panel, DJe December 12, 2017.
 MAZZOLA, Marcelo. Tutela jurisdicional colaborativa [Collaborative jurisdictional protection]. Curitiba: CRV, 2017.
 For Leonardo Carneiro da Cunha, “the discharge of the principle of cooperation entails a reappraisal of the maxim ‘iura novit curia’, causing the judge to consult the parties beforehand and to gather their expressions of opinion on the matter before applying the law to the particular case.CUNHA, Leonardo Carneiro da. O processo civil no Estado Constitucional e os fundamentos do projeto do Novo Código de Processo Civil Brasileiro[Civil procedure in the Constitutional State and the foundations of the draft of the New Brazilian Code of Civil Procedure]. Revista de Processo [Procedure Journal]. São Paulo: Court Journal, no. 209, July 2012, page 360.
 STJ, EDcl no REsp 1.280.825/RJ, Reporting JusticeIsabel Gallotti, Fourth Panel, DJe 01 August, 2017.
 STJ, AgInt in REsp 1.699.989/SP, Reporting Justice, Lázaro Guimarães (Invited Justice of the Federal Regional Court of the 5thRegion (TRF-5)), Fourth Panel, DJe 06 April, 2018; AgInt in AREsp 149798/PR, Reporting JusticeMarco Buzzi, Fourth Panel, DJe 18 May, 2018; AgInt in EDcl in REsp 1684912/BA, Reporting Justice Maria Isabel Gallotti, Fourth Panel, DJe 17 May, 2019.
 CÂMARA, Alexandre Freitas de. O Novo Processo Civil Brasileiro [New Brazilian Civil Procedure]. São Paulo: Atlas, 2015, page 9.
 As Ravi Peixoto highlights, in a surprise decision “the parties are surprised by grounds that have not been previously debated by them and the only way to protest is through an appeal, which often becomes even unviable”. PEIXOTO, Ravi. Os caminhos e descaminhos do princípio do contraditório: a evolução histórica e a situação atual[The paths and deviations of the principle of the adversarial system]. Revista de Processo [Procedure Journal]. São Paulo: Revista dos Tribunais[Court Journal], no. 294, August 2019, page 132.