Cameron Miranda
Brazil follows the civil law tradition, where rules are written, and codes and statutes are passed by Congress. The country's legal system is largely derived from Portuguese civil law and is related to the Roman-Germanic legal tradition. The Federal Constitution, created on October 5, 1988, is the supreme law of the country and is characterized by its rigid written form. The New Civil Procedure Code of 2015 has, however, brought elements of common law jurisdictions to the Brazilian courts.
| Characteristics | Values |
|---|---|
| Type of Law | Civil Law |
| Basis | Statutes |
| Influence | Portuguese civil law, Roman-Germanic legal tradition, Napoleonic French, German |
| Federal Constitution | Supreme rule of the country, created on October 5, 1988 |
| Amendments | Many |
| Federal Law Documents | Civil Code, Penal Code, Commercial Code, National Tax Code, Consolidation of Labor Laws, Customer Defense Code, Code of Civil Procedure, Code of Criminal Procedure |
| Court System | Federal and State Courts |
| Highest Court | Supreme Federal Court |
| Court Proceedings | Open to the public, unless sealed by a judge |
| Court Hierarchy | Trial Courts, Appellate Tribunals |
| Judges | Decide alone in all civil cases and most criminal cases |
| Jurisdiction | Federal Courts handle cases involving the federal government, State Courts handle the rest |
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What You'll Learn
Brazil's civil law system
Brazil follows the civil law tradition, where rules are written down as statutes and codes passed by Congress, which courts then apply to their decisions. The country's legal system is largely derived from Portuguese civil law and is related to the Roman-Germanic legal tradition. The Federal Constitution, created on 5 October 1988, is the supreme law of the land and has been amended several times. It organises the country as a Federative Republic, formed by the indissoluble union of the states and municipalities, and the Federal District.
The Brazilian judiciary has two sets of courts: federal and state. The federal organisation of justice and the jurisdiction of federal courts are established in the Federal Constitution. The states, meanwhile, organise their justice systems and jurisdiction in their own Constitutions. The Federal Constitution also dictates that municipalities must follow the legislation of the state to which they belong, and consequently, the Federal Constitution itself.
The Supreme Federal Court is the highest court in the country's legal system. It decides issues concerning offences to the Brazilian Constitution. The Superior Court of Justice is the highest court for non-constitutional issues. Both courts' rulings are binding on lower courts.
Court filings and proceedings are generally open to the public, but judges may seal the records to protect privacy and public and social interests. Brazil's civil law system has been influenced by other civil law systems, including those of Portugal, Napoleonic France, and Germany.
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The role of the Supreme Court
Brazil is a civil law country, with a legal system based on Roman and German traditions. The law of Brazil is based on statutes and, partly and more recently, a mechanism called súmulas vinculantes. The country's legal system is derived mainly from the European civil law systems, particularly the Portuguese, the Napoleonic French and the German (especially the German Civil Code).
The Supreme Federal Court (STF) is the highest court of law in Brazil for constitutional issues. It is the court of last resort, and its rulings cannot be appealed. The STF has exclusive authority to review the constitutionality of federal and state laws, preside over extradition requests, and review lower court judgments that raise constitutional questions. It also presides over criminal charges against high-level political officials and hears writs of habeas corpus and mandamus, as well as "extraordinary appeals" involving constitutional violations. The court hears cases in panels of five justices, with the most senior justice presiding.
The STF is composed of a minimum of 11 justices, who must be native Brazilians and at least 35 years old. Justices are appointed by the President after approval by a majority of senators. The Chief Justice and Adjunct Chief Justice are elected by the members of the court to a two-year term. Justices also have a mandatory retirement age of 75.
In 2009, the Supreme Court introduced the position of Juiz Instrutor, a lower court judge assigned to assist the Rapporteur judge during the investigation phase of criminal cases. The Juiz Instrutor has the authority to issue subpoenas, request documents, conduct judicial inspections, and rule on procedural issues.
The STF also has a small range of cases of original jurisdiction, including the power of judicial review and judging the constitutionality of laws passed by the National Congress through a Direct Action of Unconstitutionality (ADI).
The Supreme Court received 100,781 cases last year, and overruling seems to be frequent in STF jurisprudence. All judicial and administrative meetings of the STF have been broadcast live on television since 2002, and the court is open for the public to watch the meetings.
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Federal and state courts
Brazil's legal system is based on civil law, largely derived from Portuguese civil law and related to the Roman-Germanic legal tradition. This means that the legal system is based on written rules, codes, and statutes passed by Congress. The federal and state courts interpret and apply these laws to support their decisions.
The federal and state courts in Brazil have distinct roles and jurisdictions. The federal courts are established in the federal Constitution, while each state has its own constitution and courts, with jurisdiction over matters not within the purview of the federal judiciary.
The federal courts handle cases involving the federal government or its agencies, federal companies, and instrumentalities. They also have jurisdiction over criminal cases involving federal crimes and other crimes designated by the Constitution, as well as civil cases involving the state. Federal courts are divided into trial courts, where a single judge decides the matter, and appellate tribunals, where three or more judges review the case.
State courts, on the other hand, have residual jurisdiction. They hear criminal and civil cases that are not under the jurisdiction of the federal courts, including family and probate matters. Like the federal courts, state courts also have trial courts and appellate tribunals. Each state territory is divided into judicial districts called "comarcas," which are composed of one or more municipalities. The Court of Justice, the highest court within the state judicial system, is the court of second instance and has the final word on decisions at the state level. However, their decisions can be overturned by the federal courts.
Brazil has two national superior courts: the Superior Court of Justice (STJ) and the Supreme Federal Court (STF). The STJ is the highest court for non-constitutional issues, while the STF is the highest court in Brazil, with the authority to review the constitutionality of federal and state laws and preside over criminal charges against high-level political officials.
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Arbitration-friendly legislation
Brazil is a civil law country, with a legal system based on written rules and codes passed by Congress and applied by the courts. The country's legal system is largely derived from Portuguese civil law and is related to the Roman-Germanic legal tradition.
While Brazil's legal system is primarily based on civil law, the New Civil Procedure Code of 2015 has introduced elements of common law jurisdictions. This has resulted in a more flexible system, where litigants can enter into procedural agreements and the legal process is conducted through written submissions.
Brazilian law in matters of domestic and international arbitration has gained global recognition for its arbitration-friendly legislation and progressive case law. The country's arbitration-friendly approach is evident in its efficient handling of arbitration agreements and its adherence to international frameworks, such as the UNCITRAL Arbitration Rules and the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.
Brazil's arbitration-friendly legislation is characterized by several key features. Firstly, the country's legal system recognizes the importance of arbitration as a mechanism for resolving disputes. Arbitration is a private and flexible process where parties can agree to resolve their disputes outside the traditional court system. Brazil's laws and courts respect and enforce arbitration agreements, providing a stable framework for parties to rely on arbitration as an effective dispute resolution method.
Additionally, Brazilian arbitration law demonstrates a commitment to international standards and practices. The country's arbitration framework, including the Brazilian Arbitration Act (BAA), aligns with international norms and conventions. This alignment ensures that arbitration proceedings in Brazil are conducted fairly, efficiently, and in a manner consistent with global best practices.
Moreover, Brazil's arbitration-friendly legislation is supported by a sophisticated judicial system. The country's highest courts, the Supreme Federal Court (STF) and the Superior Court of Justice (STJ), play a crucial role in interpreting and enforcing arbitration laws. These courts have issued cutting-edge decisions on the BAA's provisions, contributing to a robust and predictable legal environment for arbitration.
In conclusion, Brazil's arbitration-friendly legislation is characterized by its recognition of arbitration as a viable dispute resolution mechanism, its adherence to international standards, and its robust judicial system that interprets and enforces arbitration laws. The country's legal framework provides a stable and reliable environment for parties seeking to resolve their disputes through arbitration, contributing to Brazil's reputation as a leader in arbitration law and practice.
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The Brazilian judiciary
Brazil follows the civil law tradition, where rules are written down as codes and statutes passed by Congress. The country's judiciary is a multifaceted system that operates on both state and federal levels. The Federal government of Brazil is defined by the 1988 Constitution, which outlines a tripartite separation of powers into the legislative, executive, and judicial branches of government. The judiciary is the group of public entities designated by the Brazilian Constitution to carry out the country's judicial functions.
Specialized justice, on the other hand, handles more specialized cases with specific procedures, including electoral, military, and labor law. There are parallel courts for these areas of law. The Superior Labor Court, for example, is the highest court for labor justice, composed of ministers named by the President of Brazil with approval from the Senate. The military justice system is divided into federal and state military justice, with the former handling matters concerning the Brazilian Armed Forces.
Brazil's highest court is the Supreme Federal Court, which is composed of eleven ministers. Its main responsibility is to serve as the guardian of the Brazilian Constitution and it has the final say on constitutional matters. The Superior Court of Justice is the highest court for non-constitutional issues.
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Frequently asked questions
Brazil follows the civil law tradition, where rules are written down as statutes and codes passed by Congress.
Brazilian law is largely derived from Portuguese civil law and is related to the Roman-Germanic legal tradition. Other sources include the Napoleonic French and German civil law systems.
Brazil has federal and state courts, with the Supreme Federal Court being the highest court in the land. The federal courts handle cases involving the federal government or its agencies and companies. State courts handle all other cases, including family and probate matters. There are also courts of special jurisdiction for labour, military, and electoral cases.
