RELIEF FROM JUDGMENT RESULTING FROM SIMULATION OR COLLUSION BETWEEN THE PARTIES IN THE CPC/2015
Relief from Judgment resulting from simulation or collusion between the parties in the CPC/2015
Revista de Processo | Vol. 309/2020 | p. 165 – 180 | Nov/2020
José Luiz Ragazzi
PhD in Civil Procedural Law from Faculdade de Direito da PUC-SP. Professor of Civil Procedural Law in the Master and Doctorate programs at Centro Universitário da Instituição Toledo do Ensino – Bauru-SP. Member of the Brazilian Institute of Procedural Law – IBDP. Attorney. firstname.lastname@example.org
Paulo Henrique Silva Godoy
PhD student in Civil Procedural Law at Centro Universitário da Instituição Toledo de Ensino in Bauru-SP. Professor of Civil Procedural Law and General Process Theory in the undergraduate program at Instituição Toledo de Ensino in Bauru-SP. Member of the Brazilian Institute of Procedural Law – IBDP. State Attorney of the State of São Paulo. email@example.com
Practice Area: Civil; Procedural
Abstract: This text analyzes the relief from judgment resulting from the simulation or collusion between the parties in the CPC/2015. It seeks to demonstrate that the relief from judgment is the common way to undo the judicial decision that has become final in simulated or fraudulent proceedings (article 966, III, second part), in particular, in cases in which procedural fraud has not been impeded by the judge, pursuant to art. 142 of CPC/2015.
Keywords: Relief from judgment – Simulation – Collusion – Fraudulent proceedings – Code of Civil Procedure
1. Introduction – 2. Relief from judgment – General Notes – 3. Relief from Judgment Grounds – 4. Relief from judgment resulting from the simulation or collusion between the parties – 5. Conclusion – References
It is common to state that the origin of social conflicts lies in the scarcity of goods and the impossibility of meeting all claims. It is also true that there are authors affirming conflicts arise not exactly from human needs, but from their desires. Others, however, claim that conflicts or disputes arise from the human condition itself, i.e., the human being is conflicting in nature.
It is worth mentioning the warning of Hélio Tornaghi¹:
“Men are not angels; unfortunately, from their limitations will always arise misunderstandings, which is an addiction of intelligence and selfishness, which is a defect of will. Passion, in turn, will overshadow the former and weaken the latter. Still in good faith, and the more without it, they will quarrel with each other and divergences will arise.”
In face of the inevitable existence of conflicts within society, there was a need to regulate and settle these conflicts through several mechanisms, especially by the almost complete prohibition of taking the law into their own hands (self-help). Among the several conflict settlement mechanisms that are even used with greater emphasis is the judicial activity, i.e., the attribution to a third party outside the conflict to decide on it (judges or arbitrators), without prejudice to other alternative or appropriate means of conflict settlement.
The purpose of the judicial activity will therefore be to settle the conflict between the parties by saying the law applicable to the case and transforming reality into compliance with the decision rendered. The judicial decision (judicial relief) aims at social pacification, as well as maintaining the legal order itself (legal protection). Judicial relief shall be granted through a fair procedure capable of providing a fair result. Alongside the desire for fair decisions, there is also the need to ensure certainty in legal relations, which prevents discussions from being eternalized and are followed and observed (res judicata), once the immutability characteristic is acquired.
When procedural systems wish to privilege the justice of decisions, in a general manner, they ensure mechanisms of correction or annulment that are called appeals, however, this search for justice must give way to legal certainty, therefore limiting the number of appeals or even prohibiting to file new attacks in order to settle the conflict and not allowing it to eternalize. This internal stabilization is called maximum preclusion or formal res judicata, which can be added to an external stability, when the decision is on the merits, i.e., a final solution to the conflict, called substantive res judicata.
Only when the judicial decision in serious and exceptional cases is stabilized, its relief is allowed. Although it is not the only means of challenging a final judicial decision, the relief from judgment gains prominence for its importance and scope, in addition to the increasingly frequent use, although our focus on this work is only one of the causes of the relief from judgment (simulation or collusion).
Antonio Carlos de Araújo Cintra, Cândido Rangel Dinamarco and Ada Pellegrini Grinover² assure that the relief for judgment makes up a balancing factor between the authority of the res judicata, which represents a pledge of legal certainty, and the outcry for greater effort in the search for fair solutions and according to the law. They also reinforce the need to face and treat relief for judgment without so many prejudices and restrictions that it would go so far as to neutralize this procedural remedy, designed in the name of justice for employment in exceptional cases; but also without so much liberality, that it would end up being an instrument of instability of rights and contempt for the constitutional guarantee of the res judicata.
With this view and with this care, we will review the relief from judgment resulting from the simulation or collusion between the parties in CPC/2015 (LGL\2015\1656) (art. 966, item III, second part).
2. The relief from judgment – General Notes
The relief from judgment is intended for the deconstitution of a judicial decision (interlocutory order, judgment, trial court or Appellate decision) that dismissed the lawsuit with judgment on the merits (CPC (LGL\2015\1656), art. 487) and exhausted all appeals when any of the grounds contained in art. 966 of the CPC (LGL\2015\1656) took place.
It is therefore intended to eradicate from the legal system those decisions containing absolute nullities, which persist even to the decision exhaustion of all appeals which closes the lawsuit, since the relative nullities are validated if they are not challenged during the lawsuit.
When talking about the nature of the relief from judgment, José Miguel Garcia Medina³ asserts that:
“The relief from judgment is an action of knowledge, of a constitutive nature. It is a separate proceeding of challenge through which matter adjudged in some lawsuit is undone. It may be a formal or substantive res judicata: it is important that the decision has acquired stability, preventing filing a new action by discussing the same subject matter” – emphasis in the original text.
The purpose of the relief from judgment undeniably lies in the reversion of the res judicata and not in simply stating any of the relief defects (art. 966), accompanied by a possible retrial of the case. We have here a court vacate in which the court decision will be revoked and vacating the res judicata, and the possibility of a court relief, i.e., executing a new trial for the case.
After warning that the foundation of a relief from judgment is not in the mere injustice of the trial’s court decision sought to be vacated in the simple violation of the legal order, Luiz Guilherme Marinoni and Daniel Mitidiero4 clarify that “effectively, what authorizes the relief from judgment is the need for protection of the right to a fair trial and the normative meaning of the text that serves for a fair decision,” i.e., that any violation of the fundamental right to a fair trial make way to the annulment of the decision. The authors5 also point out that the hypotheses authorizing the relief from judgment are allegations of violation of the right to a fair trial and violation of the normative meaning of the text that serves to the fair decision (art. 966, V, and paragraph 5, CPC (LGL\2015\1656)).
Within this perspective, Luiz Guilherme Marinoni and Daniel Mitidiero6 present a new classification for the legal hypotheses of applicability for relief from judgment:
“The relief from judgment protects the right to a fair trial, both typically and atypically. Typically, it protects the right of action and defense as a right to relief (Art. 966, III, in fine, and VIII, CPC (LGL\2015\1656)), from the right to the district previously ascertained by law (art. 966, I and II, CPC (LGL\2015\1656)), from the right to the evidence (art. 966, VI and VII, CPC (LGL\2015\1656)) and the right to procedural legal certainty, whether in terms of cognoscibility (art. 966, IV, CPC (LGL\2015\1656)), whether in terms of trust (art. 966, III, CPC (LGL\2015\1656)). Atypically, it protects all other fundamental procedural rights that integrate the fundamental right to a fair trial (art. 966, V, CPC (LGL\2015\1656)).”
It is the violation of the right to action and defense, more specifically the abnormal use of the lawsuit or abuse of the lawsuit in question (art. 966, III, second part, CPC (LGL\2015\1656)).
Again, we transcribe the lesson of Luiz Guilherme Marinoni and Daniel Mitidiero7 on the subject:
“[…] the judgment rendered in a simulated lawsuit (art. 142, CPC (LGL\2015\1656)), the result of simulation or collusion between the parties to violate the law (art. 966, III, in fine, CPC (LGL\2015\1656)), violates the right to an action and the right to defense as the right to provide relief, in accordance with the applicable law (arts. 5, XXXV, CRFB, and 8 and 140 CPC (LGL\2015\1656)). This is because the judge has a duty to render a ‘decision that impedes the objectives of the parties’ (art. 142, CPC (LGL\2015\1656)). If the judge does not render judgment, the judge violates his duty to provide relief, in accordance with the applicable law.”
Ideally, the simulation or collusion between the parties should be prevented by a court decision, pursuant to Art. 142 of the CPC (LGL\2015\1656), i.e., the judge, if convinced that the parties are using the lawsuit to attain unlawful objectives, must prevent such objectives, thus rendering an obstetric judgment that may be without or with prejudice (CPC (LGL\2015\1656), arts. 485 and 487), depending on the case and the need to prevent abuse of the lawsuit. The unlawful conduct of the parties is not always evidenced, although the decision can be rendered by evidence of fraud. In any case, if the fraud is not found and the impeditive judgment is not rendered, the route of the relief from judgment remains.
3.The relief grounds
The hypotheses of a possibility of vacating the decision in CPC/2015 (LGL\2015\1656) are as follows (art. 966):
a) it is verified that it was rendered by force of acts of malfeasance, bribery or corruption committed by the judge (item I);
b) it is rendered by a judge who is disqualified due to an impediment or by a court with lack of exclusive jurisdiction (item II);
c) it is the result of fraud or duress committed by the prevailing party to the detriment of the losing party or, even, the result of simulation or collusion between the parties, with the aim of violating the law (item III);
d) it violates the matter adjudged (item IV);
e) it clearly violates a legal provision (item V);
f) it is based on evidence whose forgery was verified in a criminal action or proven in the action for relief from judgment itself (item VI);
g) the plaintiff obtains, after the decision becomes res judicata, new evidence the existence of which the plaintiff was not aware or could not use, and which on its own can assure a favorable judgment (item VII);
g) when it is based on proof which falsehood has been established in criminal proceedings or will be demonstrated in the relief from judgment itself (item VIII);
h) it was based on an error of fact verifiable upon analysis of the records (item VIII).
The grounds of possibility of vacating indicated are emphatic, and it is impossible to consider the analogy to create hypotheses of vacating the res judicata.
4. Relief from judgment resulting from the simulation or collusion between the parties
Of the different grounds that give rise to the filing of the relief from judgment, we will focus on the study of a simulation or collusion between the parties to violate the law (art. 966, III, second part), a subject not much addressed in the Brazilian doctrine, although the illicit use of the lawsuit by the parties has been increasingly frequent.
The Civil Code (LGL\2002\400) places the simulation as a cause of nullity, not annullability, unlike the previous system (CC/1916 (LGL\1916\1)). Article 167 states: “The simulated legal business is null and void, but it will survive if it is valid in substance and form.”
Sílvio de Salvo Venosa8 explains that:
“To understand that the simulated business is null and not annullable is a legislative option that also follows the guidance of the current Portuguese Code and other legislations. As the new text is drafted, the simulators may find such nullity against each other, but they cannot do so against third parties in good faith. The fact of focusing on simulation as a cause of nullity brings substantial change to the institute, starting with the possibility of being imprescriptible, and not denaturing its grounds. In that regard, Article 169 states that the null legal agreement is not subject to confirmation, nor does it convalesce for the course of time.”
There is no doubt that the important change that occurred in the field of substantial law, i.e., the simulation as a cause of nullity, brought important changes in the procedural field, considering its instrumental nature, since the simulation perpetrated in the procedural context shall generate the same consequence of the simulation that occurred outside the lawsuit, i.e., the nullity.
Collusion is defined by Couture9 as the conversation or malicious understanding of a litigant with another or with third parties, directed to cause loss to their opponent in the lawsuit or to third parties, to those who reach the res judicata. Couture clarifies that the expression derives from language used by the circus people, from which it was said the gladiators would get along with each other before the fight. From there it went into legal language with the meaning of “being in connivance, getting along to the detriment of a third party.”
Cândido Rangel Dinamarco10 presents his definition and the origin of the word collusion in our procedural system:
“Collusion, a word not quite used in Portuguese means ”secret and fraudulent agreement between two or more parties, to the detriment of third parties; collusion.” It was introduced in the language of the Brazilian positive law by the Code of Civil Procedure of 1973, which by disciplining the relief from judgment, used it twice (arts. 485, item III, and 487, item III, letter b). At the time, the Code brought to Brazilian law the possibility of relief from judgment described in said item III, inspired by Italian law (CPC (LGL\2015\1656), arts. 395, n. 1, and 397, n. 2), it was natural that it was also convenient to use the language employed in it (collusion). If the whole process is the result of a simulated dispute by the parties, the simulated process will have been taken; and collusion may also take place between the parties during the progress of the lawsuit. To prevent simulations of this order (collusions) from producing the desired effect by the malicious parties, the Code of Civil Procedure gives the judge the inquisitive powers described in Art. 129.”
Let us use the precise lesson of Humberto Theodoro Jr.11 to highlight the distinction between simulation and collusion, as well as the link between such conducts:
“Collusion and simulation are both characteristics of fraud in the procedural activity, always for the purpose of violating the law. The difference is that collusion is always done through a bilateral act, involving both parts of the lawsuit, while simulation can be practiced by both or only one of them. Furthermore, collusion can be consummated by failing to act, where for example, plaintiff and defendant settle that the action of collection of a non-existent debt will not be challenged for the purpose of defrauding creditors. Simulation requires a concrete activity in the creation of a legal business that appears to confer or transmit rights to people other than those to whom they actually confer or transmit (Civil Code (LGL\2002\400), art. 167, paragraph 1, I); or in which a statement, confession, condition or a not true clause is included (idem, II); or those which instruments are dated or postdated (idem, III).”
Luiz Guilherme Marinoni and Daniel Mitidiero12 clarify that collusion between the parties is essential both in the fraudulent and simulated lawsuit and that the difference is not between collusion and simulation, but between fraudulent lawsuit and simulated process. They state that there is a simulation when the parties go to court and submit an apparent dispute, which does not exist, in order to confer or transmit rights in a simulated way; acts with violation of the law that frustrates law enforcement and therefore, removes its incidence or obtains what it forbids.
Barbosa Moreira13 distinguishes between a fraudulent lawsuit and a simulated lawsuit:
“[…] while in this, the parties do not really intend to take advantage of the outcome of the claim, nor therefore have a real interest in the production of the respective legal effects, unless as a simulacrum to harm third parties, in that, on the contrary, the result is truly dear, and the parties use the lawsuit precisely because it presents itself to them as the only means usable to achieve an end forbidden by law.”
The concepts presented by Barbosa Moreira are accepted by Nelson Nery Jr. and Rosa Maria Andrade Nery14, who highlight to be in the simulated lawsuit, the simulated dispute with the purpose of harming third parties or even diverting the lawsuit from its constitutional and ontological objective of serving as an instrument for social peace. They also state that the simulated lawsuit is, in essence, fraudulent, for objectifying unlawful results. In relation to the fraudulent lawsuit, they state that such a characteristic will occur when the parties wish to use the lawsuit to achieve results forbidden by law.
The difference between a simulated lawsuit and a fraudulent lawsuit is extremely subtle, for simulation is always done in violation of the law or the third party. In fact, in both cases, we are faced with a violation of the law and that must be the discriminatory element.
Nelson Nery Jr. and Rosa Maria Andrade Nery15 present the following examples of a simulated process: a) possessory action in collusion between plaintiff and defendant, without challenging or opposition to the defendant, to false allegations of long possession, with the purpose of making a pre-produced evidence for future action of adverse possession − simulation of the existence of the legal act of offense to the possession of the plaintiff; b) an action for eviction in order to demonstrate indirect possession of the plaintiff, with a view to pre-production of evidence for future possessory action or adverse possession − simulation of the existence of the legal business of tenant relationship. Examples of fraudulent lawsuits are: a) action of annulment of marriage with collusion of the spouses, which lead to believe a defect of marriage that does not exist, because both intend to avail themselves of the effects of the judgment; b) mother’s action of alimony against her child with the purpose of creating illegal deduction of income tax to the detriment of the taxpayer.
In the labor area, Manoel Antonio Teixeira Filho presents16 the following examples: a) the simulation, between plaintiff and defendant, of an employment contract with the hidden purpose of being benefited from the social security agency − retirement of the plaintiff − or causing damage to the legitimate interests of the third party, as it would occur, e.g., in the event the defendant is a bankruptcy estate, and the credits of plaintiff, arising from a supposed employment contract, absorb all the forces of the estate, by virtue of the legal super-privilege they bear in the face of credits of another nature; and b) the simulation of a termination of the employment contract, by the employer, without cause, with the purpose of allowing the employee to withdraw the amounts deposited in his/her account relating to the FGTS.
Other examples of simulated processes are: a) consensual legal separation to defraud creditors by allocating all assets or most assets to the non-debtor spouse; b) labor claims to create privileged credit to the detriment of other creditors without any labor bond.
Art. 967 of the CPC (LGL\2015\1656) is about the standing to act, i.e., those who can sue for relief from judgment as plaintiffs. Standing is conferred on the parties or their successors (item I), to the third party legally concerned (item II), to the Prosecution Office (item III) and to the one who was not heard in the proceedings in which the intervention was mandatory (item IV).
4.1.1. Standing of the parties or their successors
Doctrine and court precedents are practically peaceful in order not to recognize the standing of the parties that used the simulation or collusion to violate the law, even if such conduct was practiced by its legal representative, although the situation of plurality of parties must be an exception, in which the one who did not participate in the simulation or collusion would be standing to file a relief from judgment.
In this regard, the lesson of Pontes de Miranda17 on the issue is:
“If the judgment resulted from collusion between the parties in order to violate the law, the Prosecution Office is the active standing authority to the relief from judgment, which is explicit in the Code of Civil Procedure, art. 487, item III, b, but not this one; if there is a plurality of parts and one or some do not contribute to fraus legis, it stands or are standing to file the relief from judgment […]. Only the parties who were in collusion have no standing to sue. The third party legally interested and the Prosecution Office are also standing, without excluding, in the case of plurality of plaintiffs or defendants, to the standing of the plaintiff or the defendant, who was not inserted in the collusion.”
In accordance with the Civil Code (LGL\2002\400) in regards to the simulation (nullity), as verified in the previous item, the simulators may charge each other of simulation, which will allow the recognition of standing even of the parties that participated in the collusion.
Ernane Fidélis dos Santos supports18 that “as it is a matter of public order, it can be the relief to be filed on the basis of collusion, even by the parties that participated in it, when any judgment on the merits is hidden by the res judicata.”
In the same regard, Teresa Arruda Alvim19 asserts: “it is worth noting that, in our view, in relation to the nullities, the principle of the non-allegation of one’s own repulsive act to the benefit of oneself does not apply. Therefore, the parties themselves may bring relief from judgment based on this provision.”
4.1.2. Standing of a third party with a legal interest
The matter of the standing of the third party to promote the relief from judgment resulting from simulation or collusion presents itself as one of the most intricate points on the subject. It is therefore urgent to know whether the third party is legally affected by the court decision or reached only in fact. As is known, the res judicata cannot reach third parties to harm them (Art. 506 of the CPC (LGL\2015\1656)), however, the court decision may affect third parties in a reflex or indirect way. The third party will be entitled to file a relief from judgment when legally affected by the simulated or fraudulent lawsuit.
In this regard, Ernane Fidélis dos Santos20 writes:
“Apparently, the interest of the third party may prove to be pure fact, but for the purposes of the process relating to it, that interest may become legal. This is the case of the simulated lawsuit, organized to harm the third party. Plaintiff claims the sole asset of the debtor or seeks to annul the sale that made to him, all simulated, to harm the creditor. The equity decrease is pure fact, but the simulation against the creditor practiced already involves him in a legal relationship that makes him stand to act in the lawsuit as a qualified assistant (art. 54), but also to promote the relief from judgment.”
It shall be emphasized that the third party, although it has the same deadline to filing the two-year relief from judgment, the initial term of the term count will be the effective awareness of the simulated or fraudulent lawsuit, as it will be analyzed in a proper item.
4.1.3. Standing of the Prosecution Office
The Prosecution Office have standing to file a relief from judgment, either as a party (art. 967, I, of the CPC (LGL\2015\1656)), or in the event that it was not heard in the proceedings in which an intervention was mandatory (art. 967, III, a), whether in cases where the foundation of the action is simulation or collusion of the parties for the purpose of violating the law (art. 967 , III, b) and in other cases where its performance is imposed (art. 967, III, c).
Sérgio Gilberto Porto21 reveals the importance and foundations of the standing conferred on the Prosecution Office, to avoid the validation of a decision on the merits given in a fraudulent lawsuit that has not been obstructed:
“The proposal aims precisely to avoid the validation of a decision on the merits rendered in a fraudulent lawsuit. For this purpose, the law has also provided that the Prosecution Office is standing to the filing of a relief from judgment, given that there was an agreement of the parties to violate the law is, at the very least, reasonable to assume that none of these will take any initiative with the effect of annulling the decision rendered, hence the standing granted to the Parquet, and today, after the advent of the Federal Constitution of 1988, with even more reason, in view of its natural task of defending the law. Therefore, its standing (and duty) does not derive only from ordinary law (art. 487, item III, a, CPC (LGL\2015\1656)), but before the Federal Constitution itself (art. 127).”
In this event, plaintiff and defendant who contributed to the fraud shall be summoned as indispensable party.
4.1.4. Standing of the one who was not heard in the lawsuit in which its intervention was mandatory
The hypothesis of standing under analysis does not apply to the person who should have been summoned as a defendant or indispensable party and was not summoned. The absence of a summons from the party or co-party generates the ineffectiveness of the judgment (legal non-existence), which forms no res judicata and, therefore, dismisses the use of a relief from judgment. The Brazilian Securities and Exchange Commission (CVM) can be mentioned as an example, which in the lawsuits that are about matters included in its jurisdiction, “this will always be subpoenaed to, willingly, offer an opinion or provide clarifications” (art. 31 of Law 6.385/1976 (LGL\1976\11)).
4.2. Vacating and relief courts
The complaint for the relief from judgment, addressed to the court (originating jurisdiction), must comply with the common requirements of any complaint and which are provided for in Art. 319 of the CPC (LGL\2015\1656). In addition to these requirements, the complaint must comply with Article 968 of two other special measures: a) cumulate the request for termination, if applicable, the retrial of the case; b) deposit the amount of five percent on the value of the claim, which will become a fine, if the action is unanimously voted, declared inadmissible or unfounded.
Antonio Carlos de Araújo Cintra, Cândido Rangel Dinamarco and Ada Pellegrini Grinover22 support that, just as the resources are, in most cases, capable of producing the double effect of annulment and replacement of acts under appeal, the relief from judgment may also, in certain cases, have as subject matter intention of not only vacating the act, but also to replace it with another. Such is the meaning of the distinction between the judicium rescindens, present in all relief from judgment, and the judicium rescissorium, that only “as the case may be” can take place, as provided by the CPC (LGL\2015\1656) (art. 968, I). The result of the judicium rescindens, when positive, will be the vacating of the res judicata, or its annulment. The result of the judicium rescissorium, when admissible, will be its replacement by another.
According to Humberto Theodoro Jr.,23
“in practice, there are only three hypotheses in which joinder will not occur: a) that of offense to the res judicata (art. 966, IV), where the relief from judgment will only annul the challenged judgment; b) that of a judge who is absolutely disqualified due to an impediment (art. 966, I); and (c) that of a court who is disqualified due to an impediment or absolutely incompetent (art. 966, II); for in the last two cases, the entire instruction of the lawsuit will be annulled and the action will have to be renewed in the lower court.”
How to deal with the matter in the relief from judgment resulting from the simulation or collusion between the parties? We would have only the judicium rescindens there or it would be possible to judicium rescissorium.
Flávio Luiz Yarshell24 states that:
“In this case, the validity of the request for relief does not seem to lead to a judicium rescissorium, because what is intended is precisely to annul the effects of the original trial that, in some way, sought to achieve illegal aims. Therefore – and at least apparently – the annulment of the judgment on the merits is what is wanted and what is sufficient. To render a new trial would be to consider the subject matter of the original lawsuit as lawful, when precisely, it is where the problem lies. The aim is to stop this trial.”
Although this is the most common situation, it is not impossible to retrial (judicium rescissorium), as Flávio Luiz Yarshell25 explains:
“Certain that, after the judgment on the merits is null, the retrial (judicium rescissorium) could consist in the denial of the request deducted in the original lawsuit, i.e., in the decree of its invalidity. In practical terms, if this means preventing the unlawful purpose of the parties, then the result of that order may be accepted. However, it is necessary to consider the hypothesis that the possible invalidity of the original request is still valid, in some way, to provide illegal aim (by the simulacrum that is involved). In that case, therefore, the request made in the original lawsuit would not solve the problem and, unless mistaken, would not prevent the unlawful aim sought by the parties. Nor does it seem right to proceed in a new trial for the annulment or declaring invalid some other act practiced by the parties, because this would extrapolate the subject matter of the relief from judgment. At this point, by the particularities of the relief from judgment (as to the subject matter, grounds and jurisdiction), it does not even seem lawful for plaintiff to accumulate to the request for relief others who wish to go beyond the mere annulment of the judgment on the merits. Such claims shall be deducted in different cases before the competent judicial authority.”
4.3. Term for the filing
The peremptive period for filing the relief from judgement is two years counted from the “the last decision rendered in the proceedings becomes res judicata” (CPC/2015 (LGL\2015\1656), art. 975), and it may be extended to the first working day immediately thereafter, when it expires during a forensic vacation, recess, holidays or on a day that there is no forensic office (art. 975, paragraph 1), thus avoiding that plaintiff has to anticipate its filing. Moreover, it is worth noting that, in the case of the period foreseen in year, the peremption of the relief from judgment will occur on the same day and month of the beginning of its counting (CC (LGL\2002\400), art. 132, paragraph 3).
One of the most delicate topics is linked to the expression contained in article 975, when the CPC (LGL\2015\1656) establishes that the beginning of the period is the “the last decision rendered in the proceedings becomes res judicata.” This wording followed the guidance contained in Precedent 401 of the Supreme Court, according to which the relief does not obey the fractionation of the solution of the merits by chapters, in several decisions, and should occur only once. Considering the aims of the present work, we will not go further into the subject, but this rule has generated great controversies and discussions in the doctrinal and precedents field, and art. 975 is unconstitutional for it confronts the Supreme Court understanding that acknowledges the possibility of the formation of the substantial res judicata gradually or progressively.
The CPC/2015 (LGL\2015\1656) also brought as a novelty the prediction of differentiated initial terms, i.e., situations that escape the general rule of two years counted from the res judicata (art. 975). By highlighting that it is the third hypothesis that interests us most directly, they are:
a) The first hypothesis is provided for in Article 975, paragraph 2, which establishes that if a relief from judgment is grounded on item VII of Art. 966 (new evidence), the initial term shall be the date of discovery of the new evidence, observing the maximum period of 5 (five) years, counted from the res judicata of the last decision rendered in the lawsuit, i.e., the date of discovery the evidence or not, the peremption of the relief from judgment will be completed after reaching the maximum limit;
b) The second hypothesis is about the decision of the Supreme Court after the res judicata of the trial court’s decision that has to be based on the law or a normative act considered unconstitutional by the Supreme Court, or based on the application or interpretation of the law or normative act considered by the Supreme Court as incompatible with the Constitution, in control of concentrated or diffuse constitutionality;
c) the third hypothesis, contained in Art. 975, paragraph 3, is based on simulation or collusion of the parties, which provides for the counting of the period of two years from the time in which the fraud is known.
Humberto Theodoro Jr.26 claims that, in the case of simulation or collusion,
“this amendment of the dies a quo applies only to the injured third party, and to the Prosecution Office, when it has not intervened in the lawsuit (Art. 975, paragraph 3). To the one who was part of or intervening party in the action in which the trial court’s decision (including the Prosecution Office), privileged counting is not extended.”
Finally, one of the most interesting aspects regarding the term for the relief from judgment resulting from simulation or collusion is whether or not there is a ceiling for filing the relief from judgment in the hypothesis of paragraph 3 of Art. 975, i.e., there would have been a purposeful silence on the part of the legislator; furthermore, whether or not we should apply the analogy to establish a maximum limit of five years for filing the relief from judgment of the res judicata of the trial court’s decision.
Defending the analog application for reasons of legal certainty, Luiz Guilherme Marinoni and Daniel Mitidiero27 writes:
“Contrary to what occurs in the event of a relief from judgment based on new evidence, in the case of relief from judgment based on simulation or collusion of the parties, the legislator does not repeat the maximum period of five years of the res judicata as a limit for its exercise. The legislator only states that the term is two years, which flows from the awareness of the simulation or collusion. It is clear, however, that the principle of legal certainty determines an interpretation favorable to the stability of social relations, so that it seems appropriate the analog invocation of the maximum period of five years – ubi ratio, ubi jus. It is worth saying: the possibility of relief of the decision resulting from the simulation or collusion of the parties does not survive the five-year period of res judicata.”
In the opposite direction is the understanding of Humberto Theodoro Jr.:28
“The new law did not repeat, in paragraph 3, the stipulation of a maximum period, as it had done in paragraph 2, in relation to the discovery of new evidence. The reason for leaving the term for relief from judgment unlimitedly open, while strangers to the process are not aware of the simulation or collusion to violate the law, it is related to the fact of encountering acts contaminated by nullity and not only by annullability (Civil Code (LGL\2002\400), arts. 166, VI, and 167), further aggravated by the harmful reflexes produced beyond the interests of the subjects of the procedural relationship.”
We understand that Humberto Theodoro Jr.’s position on the issue is more correct, considering the seriousness resulting from the abuse of the lawsuit, or even the abnormal use of the lawsuit, in these situations that generate absolute nullity with serious consequences in the legal sphere of third parties, not to mention that it is an affront to the dignity of justice itself.
The simulation or collusion between the parties to violate the law represent a serious defect, thus generating an absolute nullity. Our procedural system allows the judge to prevent the parties from using the lawsuit to achieve unlawful purposes by rendering a preventing judgment (CPC (LGL\2015\1656), art. 142). Simulation or collusion will not always be perceived by the judge, which is why the legislator chooses as relief defects such conducts (art. 966, III, second part). In other words, a relief from judgment will only be necessary if the unlawful ends are not prevented. The relief from judgment constitutes a means of terminating or undoing the effects of a simulated or fraudulent lawsuit and may be filed by one of the standing parties indicated in Art. 967 of the CPC (LGL\2015\1656), within two years. The CPC/2015 (LGL\2015\1656) sought to demonstrate that the simulated process may also be the subject matter of a relief from judgment and expressly reaffirmed that for the injured third party or for the Prosecution Office the term of counting the period will be the moment of effective knowledge of the fraud, without any temporal limitation.
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1 .TORNAGHI, Hélio. Comentários ao Código de Processo Civil. 50. ed. São Paulo: Revista dos Tribunais, 1974. v. 1. p. 1.
2 .CINTRA, Antonio Carlos de Araújo; DINAMARCO, Cândido Rangel; GRINOVER, Ada