BRAZIL Law and Practice Contributed by: Octaviano Duarte, Henrique Forssell and Marcelo Lucidi, Duarte Forssell Advogados
Civil Actions Ex Delicto If a conviction is handed down in a definitive sentence, within the records of any criminal action, the convicted person becomes obliged to compensate the victim (Article 91, I, of the Criminal Code). Regarding the legal duty to indemnify, it is possible to file a civil action ex delicto, an action defined by schol - ars as “the judicial procedure aimed at recovering the civil damage caused by the crime”. Only individuals who have been convicted in the criminal court can be the subject (on the defendant side) of a civil action ex delicto. Any joint and several liability may only be recognised in specific actions filed in the civil court. The acquittal sentence does not constitute res judi - cata in civil matters, unless the non-existence of the fact has been recognised (Article 66 of Criminal Pro - The instigation of a criminal prosecution does not impede the progression of parallel civil claims. How - ever, there can be instances where the progression of one case affects the other. In some situations, a civil court may decide to stay civil proceedings for a period up to one year if there is an ongoing criminal investigation or prosecution involving the same parties and issues (Article 315 of Civil Procedure Code). This decision aims to avoid potential conflicts between the civil and criminal processes and ensure a fair resolu - tion of the case. 2.6 Judgment Without Trial As a rule, Brazilian law requires a full trial where the defendant has been given the right to fully defend themselves. However, in certain circumstances in civil proceedings, the judgment can be rendered without a full trial. • Summary judgment (Article 332 of Civil Procedure Code) – If the case does not require evidence to be produced apart from documentary evidence, it may be summarily dismissed, even before the defend- ant has been served, when the plaintiff’s requests are against the binding precedents of the Superior Court of Justice or Supreme Federal Tribunal in matters of Federal or Constitutional law; or when cedure Code). Parallel Claims
against the binding precedents of the State Court in matters of local law. A summary judgment dis - missing the case may also be rendered if the judge recognises the statute of limitation. • Default judgment (Article 355 of Civil Procedure Code) – If the defendant, once duly served, fails to appear or to file a defence within the applicable time limit, the court may declare the defendant in default (revelia). As a general rule, default gives rise to a presumption that the factual allegations made by the plaintiff are true. This presumption is not absolute, however, and does not apply in certain circumstances, including where the dispute concerns non-disposable rights, where the claim lacks a minimum evidentiary basis, or where the allegations are implausible or contradicted by the record. If, in light of the default, no further evidence is required, the court may render an early judgment on the merits under Article 355 of the Civil Proce - dure Code. Even in such cases, the court must still satisfy itself that the claim is legally grounded and sufficiently supported by the evidence available. • Relief granted on the basis of prima facie evidence (Article 311 of Civil Procedure Code) – Relief based on prima facie evidence is to be granted when: (a) there is an abuse of the right of defence or the party demonstrates clear intentions of delaying the proceedings; (b) the allegation can be proven only by means of documental evidence and when there is a rule based on the trial of multiple claims on the same point of law or a “súmula”, a binding statement; (c) it is an action to reclaim the possession of property based on the documental evidence of a bailment contract, in which case an order shall be issued to return the object held by the bailee for safekeeping, under a fine; or (d) the initial complaint is supported by sufficiently robust documentary evidence of the facts con - stituting the plaintiff’s right, and the defendant does not produce evidence capable of raising a relevant factual dispute, so that the matter may be decided without further taking of evidence. 2.7 Rules for Pleading Fraud Although Brazil lacks special legal rules for pleading fraud, there are certain rules and professional conduct
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