Doing Business in Brazil

1.2. Brazilian Legal Estructure

06/01/19

As we know, the concepts of three forms of government have been established since the Antiquity, namely: (a) Monarchy, government of a single person; (b) Aristocracy, government of more than one, but of few; (c) Republic, government in which the people govern in the people’s interest, characterized by periodic election of a Head of State.

Since 1889 Brazil has adopted the Federative Republic as form of government as set forth by Articles 1 and 18 of the Federal Constitution having as its components the Federal Government (Union), the States, Federal District and Municipalities. The fundamental purposes of such legal structure are: to build a free, fair and close-knit and supporting society; to assure national development; eradicate poverty and marginalization; reduce social and regional inequalities, and promote common god with no prejudice of origin, race, gender, color, age and other forms of discrimination (Article Three, CF/1988).

Each Federate State is provided with an International Public Law legal personality with the Union as the federal entity formed by all States, being an internal Public Law legal entity, independent in relation thereto, who shall exercise the Brazilian State sovereignty prerogatives. Federate States, in turn, hold autonomy limited to the jurisdictions determined by the Federal Constitution. Such jurisdictions are based on two pillars: the existence of governmental bodies that do not depend on federal bodies as to selection and investiture, and on the holding of exclusive jurisdictions according to Article 18 to 42 of the Constitution.

The selection and division of these jurisdictions between the Federal Government and the States is the support of the Federal State originating a complex state structure that presents unitary and federative aspects. Unitary if we consider one single population and one single territory which, although divided into States, are subject to the Federal power; and Federative while each State is responsible for the formation of will of federal bodies with application on the respective territories and populations.

The Federative Republic of Brazil presumes the principle of separation of branches and full coexistence thereof: Legislative, Executive and Judiciary, by entrusting each of them with functional specialization and organic independence, resulting in absence of subordination of one power in relation to the other. The legislative function consists in the issue of general rules called laws; the executive function solves the actual problems according to the laws and finally the jurisdictional function corresponds to the application of the law to the actual cases to solve and settle disputes and actions.

In Brazil we also observe that the Judiciary Branch has restricted jurisdiction, the one applying res judicata. Such jurisdiction will be divided into Courts of General Jurisdiction comprising: (i) State Courts; (ii) Small Claims Court and (iii) Federal Courts; and Courts of Special Jurisdiction formed by: (i) Labor Courts; (ii) Military Courts and (iii) Electoral Courts. The jurisdiction will be determined at the time in which the action will be filed being governed according to the case value and matter.

The distribution of jurisdiction will be determined by the Federal Constitution in its Articles 108 and 109 on Federal Courts, and the State Courts jurisdiction will be defined by exclusion being responsible for prosecuting and judging all things that are not matters for the Courts of Special Jurisdiction of the Federal Courts.

The branch separation principle applicable to Brazil concerts with Article 16 of the 1789 Declaration of the Rights of Man and the Citizen being also assigned an outstanding position in the Federal Constitution to the extent that it was given status of fundamental principle.

However there are exceptions based on the actual constitutional text, to the principle of separation of branches, consisting in the possibility of one of the established powers delegating attributions to another. Example: adoption by the President of the Republic of provisional measures with force of law and the authorization of delegation of legislative attributions to the President of the Republic (cf. respectively Articles 62 and 68 of the Federal Constitution/1988).

Brazil adopts a codified system or the so-called continental system, that is, the statute, always in its restricted construction, is the major source of the law, with the other sources being considered secondary. Unlike the common law which is the law declared by the judge where the main source of law is the case law or court precedents, with the statute having secondary status.

The Brazilian legal structure is also grounded on the democratic principle of law destined to assure the exercise of social and individual rights, freedom, security, well-being, development, equality and justice as essential values of a free, just and fraternal society. Democracy may be understood as a political regime by the people and for the people: that is, the achievement of social conviviality values where the power is exercised directly or indirectly by the people; through three types of democracy: (i) direct democracy: the people exercises governmental powers by issuing laws; (ii) indirect or representative democracy: where the people grants the government functions to their representatives periodically elected; and (iii) semi-direct democracy with the people’s direct participation in the government functions.

At last we can affirm that the fundamental purposes of the Federative Republic of Brazil – Democratic Rule of Law – aim at overcoming social, regional and economic inequalities in search of the supreme value of justice.

 


Gaia, Silva, Gaede & Associados

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