jusbrasil.com.br
25 de Fevereiro de 2020

How to get free justice


Just as every cause has a value, every process has a cost. Although access to justice is a right of all citizens in the Brazilian legal system, it must be considered that it requires public work.


This does not mean that those who cannot afford the costs of a lawsuit cannot seek their rights in court. For this reason, the legislature introduced the right to benefit from Free Justice.


Free Justice is the right for those who are unable to sue in court, without prejudice to their personal and family maintenance, except if they benefit from the economic benefit of the process itself.


In the first place, the mere declaration of hyposufficiency or also known as the declaration of poverty, presumes that such a claim is true and sufficient for the granting of the right, and no further proof is required under § 3 of art. 99 of the Code of Civil Procedure:


Article 99, § 3 - The allegation of insufficiency deduced exclusively by a natural person is presumed to be true.


And so provides for item IV of art. CPC 374:Art. 374. The facts do not depend on proof:


IV - in whose favor militates legal presumption of existence or veracity.


It turns out that such a presumption of truth is only relative, however, the judge cannot dismiss the claim without first giving the plaintiff a chance to demonstrate that he is in fact unable to afford the costs.


Art. 10. The judge may not decide, in any degree of jurisdiction, on the basis of which the parties have not been given the opportunity to speak, even if it is a matter on which they must decide by office.


When there is such a requirement of the Judge, it must be substantiated which documents would be necessary for such concession - according to his own criterion, pursuant to § 2 of art. 99 of the CPC, which provides:


Paragraph 2 - The judge may reject the request only if there is evidence in the case file that evidences the lack of legal requirements for the granting of gratuity, and, before rejecting the request, determines to the party the proof of fulfillment of said assumptions.


The gratuity may be granted in respect of any or all procedural acts, or may consist of the percentage reduction of procedural expenses that the beneficiary has to advance in the course of the procedure.


Depending on the case, the judge may grant the right to installment of procedural expenses that the beneficiary has to advance in the course of the proceedings.


DECLARATION MODEL

For the purpose of assisting those interested in granting the benefit, follows a model of declaration of financial sufficiency, which should sign in their own hand with signature similar to the personal documents of the party.


HOW TO PROVE THE IMPOSSIBILITY OF PAYING COSTS?


Considering that it is for the judge to require which types of evidence are necessary to grant the benefit of the plan, the logical reasoning must be as follows:


"The financial capacity to pay the costs stems from the financial willingness of the person concerned to pay the corresponding amount. Thus, if the simple mathematical account is able to prove that the amount of a monthly remuneration, less the sum of the common expenses of the person required to his survival and that of his family, if there is not enough money left to pay the procedural costs, there will be demonstrated the real inability to pay the costs"By Adriano Hermida Maia

In this sense, the monthly expenses can be demonstrated by copying proof of bills of water, electricity, telephone, iptu, rental receipts, food expenses, transportation, internet, credit card.

The individual's monthly income may be shown by means of a copy of CTPS, bank statement, payment receipts, service contract and income tax, which will be able to demonstrate the monthly income that the person actually has.

Obviously, if it faces unemployment and name restrictions in a debtor database, it should also be demonstrated to make clear the financial inability of court costs.

Importantly, the Superior Court of Justice and the Federal Supreme Court have the understanding that the simple proof of monthly earnings of up to 5 minimum wages, already rule out the need to pay the procedural costs, however, there are courts that adopt other criteria, including reaching 10 minimum wages as the Rio de Janeiro Court of Justice has ruled. (STJ - REsp: 1725603 RS 2018 / 0039297-6)

IF YOU HAVE TO PAY THE COSTS?

In the case of inability to pay the costs of the proceedings, the party shall bear its payment from the beginning to the final judgment or, in execution, until the full satisfaction of the right recognized in the title.

Costs include citation costs, court bailiffs, postings, court fees, copies, fees, etc.

It is important to clarify that the amount of the court costs will, in the first place, depend on the judgment of the case. Each agency, including each state, has different rules for this accounting.

Therefore, the first step is to identify the processing site and then seek specific legislation.

Nevertheless, there are tables with the values of the court costs that can guide the lawyer in the calculation.

In addition to the differentiated values, the competence may indicate whether or not the payment of costs is a requirement for the action.


NEED HELP?

Visit www.hermidamaia.adv.br and talk to our lawyers without leaving home.


Dr. Adriano Hermida Maia (adrianohermida.jusbrasil.com.br)

Lawyer and Partner of Hermida Maia. Postgraduate in Civil Procedure, Labor Law and Labor Procedure, MBA in Accounting & Tax Law with emphasis on tax risk.

Online Service: m.me/hermidamaiaadv

Visit our website: www.hermidamaia.adv.br

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