BRAZIL Law and Practice Contributed by: Octaviano Duarte, Henrique Forssell and Marcelo Lucidi, Duarte Forssell Advogados
judgments or investigation of financial crimes, when there is suspicion of dissipation of assets. In Brazil, judges have access to electronic systems whereby they can instantly obtain the tax returns of a debtor and order financial institutions to provide any relevant bank statements. INFOJUD is a system used in Brazil to obtain tax-relat - ed information from government databases. It is pri - marily utilised by judicial authorities in civil and crimi - nal proceedings to access tax records and financial information related to individuals and entities involved in legal disputes. Information Available From Public Sources In Brazil, a wide range of public sources can provide information about the defendant’s assets, including the following, among others: • land registry – holds information on real property ownership; • registry of vehicles – holds information on vehicle ownership; • commercial registry (trade board) – holds informa - tion on share ownership; and • aircraft registry – holds information on aircraft ownership. In the Brazilian legal system, parties have an inde - pendent right to obtain evidence regardless of a pre - vious legal proceeding. Such right can be initiated through a standalone proceeding known as the Early Production of Evidence (Article 381 of the Civil Proce - dure Code). This procedure aims to preserve evidence in various circumstances: • there is a substantiated risk that it could become impossible or very hard to verify certain facts after filing the lawsuit; • such evidence might enable the parties to set - tle the case or reach some other solution to the dispute; 2.2 Preserving Evidence Early Production of Evidence • the prior knowledge of such facts will have a bear - ing on whether or not a suit needs to be filed; and/ or
• the party needs to justify the existence of a fact or legal relationship for documentation purposes. Precautionary Measures In addition, under Articles 300 and 301 of the Civil Procedure Code, a party may petition the court for a preliminary injunction to preserve evidence if it can demonstrate both the likelihood of success of its claims and the risk of losses where the evidence is not produced as requested. This measure allows for the preservation of specific types of evidence, such as documents or other tangible items, that are believed to be in the defendant’s possession. To support the request for a preliminary injunction, the applicant must specifically describe the evidence sought and provide sufficient justification for the belief that it is in the defendant’s possession. This may include presenting relevant facts or circumstanc - es that indicate the likelihood of the evidence being within the defendant’s control. The judge will review the grounds of the request and assess whether the evidence sought should be pre - served through a preliminary injunction. Factors con - sidered may include the likelihood of success of the claims, the potential harm to the claimant if the evi - dence is not preserved, and any other relevant circum - In Brazil, the plaintiff is not permitted to conduct a physical search of documents at the defendant’s resi - dence or place of business. However, the claimant may petition the court for a judicial order authorising a judicial bailiff to conduct the search and seizure if the need to preserve the evidence is proven. stances of the case. Other Considerations Any court authorisation for the use of police force should be motivated and preceded by a demonstra - tion of the necessity and appropriateness of the meas - ure. Factors such as the importance of the evidence, the potential harm if it is not preserved, and the avail - ability of alternative means of obtaining the evidence may be considered in assessing the request. In preserving evidence proceedings, as a general rule no cross-undertaking in damages is required.
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