PORTUGAL Law and Practice Contributed by: Rita Samoreno Gomes and Petra Carreira, PLMJ
PLMJ Avenida Fontes Pereira de Melo, 43 1050-119 Lisbon Portugal
Tel: +351 213 197 300 Fax: +351 213 197 400 Email: plmjlaw@plmj.pt Web: www.plmj.com
1. General 1.1 General Characteristics of the Legal System Portugal has a code-based civil law justice sys- tem. Legal process is conducted through both written submissions and oral argument. The primary sources of law are laws and cus- tomary rules. Legal doctrine is not a source of law, but merely an interpretative tool. There is no precedent rule in the Portuguese legal sys- tem. As with legal doctrine, case law is another interpretative tool for the proper application of the law. In some circumstances, the Supreme Court of Justice may be called upon to make a final deci- sion on conflicting case law, but the decision rendered is not binding outside the case in which it is rendered. The courts may adjudicate ex aequo et bono when the law allows it or when the parties agree on it. Civil proceedings rely on the dispositive princi- ple – ie, the principle that the parties to the dis- pute are to determine the scope of the case by
alleging the facts which comprise the cause of action and those on which their claim/defence is based and adducing the evidence they deem appropriate. The court’s role is to conduct and monitor the proceedings and ensure that evidence is pro- duced according to the applicable legal rules. The court weighs the evidence produced according to predetermined rules, including on the burden of proof. Nevertheless, the courts have a range of powers they can use of their own motion if considered necessary to ascertain the truth and to reach a decision. These include asking for evidence not requested or produced by the parties, calling the parties or witnesses to testify, ordering expert evidence, or asking the parties or third parties to disclose documents or other relevant evidence. 1.2 Court System The Portuguese court system has several cat- egories of courts: • the Constitutional Court; • the Court of Auditors, which oversees the legality and regularity of public revenue and expenditure;
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