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Novo Cpc Pdf 2016

29 abr. PDF | ISSN ISBN "MEDIATION IN THE " Mediação no Novo CPC - estudos de caso e direito comparado" ISSN an Aid to Teaching Legal English - Lecturer's Conference UNISUL PDF | On Apr 29, , Elisa Correa and others published ELISA MEDIACAO NO NOVO CPC ESTUDOS DE CASO E DIREITO COMPARADO ancho. Language as an Aid to Teaching Legal English - Lecturer's Conference UNISUL May 7, PDF | ISSN ABSTRACT: the present essay intends to analyze Conflict Mediação no Novo CPC - estudos de caso e direito comparado an Aid to Teaching Legal English - Lecturer's Conference UNISUL

The procedural changes promoted by the NCPC open up new perspectives for managing litigations in the Brazilian Judiciary, which faces serious problems regarding the excessive number of ongoing lawsuits — among other shortcomings. In this essay we will briefly present some of the most important changes in the NCPC that can provide better results in resolving disputes. Extension of Pre-Trial Proceedings. Traditionally, the Brazilian civil procedure did not include discovery proceedings and did not hold judgments before jury trials. Thus, it was mandatory that expert and witness evidence be produced throughout the trial, during proper time frames, when the parties would have the right to be heard. The correct use of this mechanism will certainly increase the number of settlements, especially those involving factual issues that can be settled by way of the evidence that has been produced. Strengthening Mediation. The facilitation of out-of-court settlements between parties has also been welcomed as a means of strengthening mediation and conciliation. Brazilians have the cultural tendency to believe that the judiciary is the only responsible body for providing solutions to all kinds of conflicts. For that purpose, the NCPC determines — with few exceptions — that in civil lawsuits the defendant will be summoned to appear before a conciliation or mediation hearing, which will not be chaired by the judge, with the aim of facilitating a negotiation between the parties. This will depend on the progress of negotiations between the relevant parties. During this period, the defendant does not have to come up with his defense.

As previously mentioned, one of the most significant problems in the Brazilian Judiciary is the excessive number of lawsuits. The numbers involved are intolerable: there are nearly 50, lawsuits for every , inhabitants. Such lawsuits involve various categories: consumer law, tax law, pensions, etc. In this regard, the NCPC has laid down two crucial measures: a the possibility of suspending lawsuits under way whenever there is the intention of creating legal precedents on the legal issues that will be applied to repetitive cases — thereby avoiding the unnecessary expenditure of resources and work; [11] and b the creation of a model for binding precedents.

In fact, the inclusion of a system of precedents will enable the Brazilian judicial procedure to accomplish greater predictability and equality by making use of the same decision in dealing with all parties who may be in similar legal situations with the one that gave rise to the precedent. This may well be the most important change in the NCPC, and will require much effort and adaptation of legal professionals until it becomes truly effective from a practical point of view.

Increasing Procedural Costs for Losing Parties. In various judicial systems, at the end of a lawsuit, the losing party is required to refund the lawyer fees that were paid by the winning party.

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Strengthening the Power of Judges in the Enforcement Proceedings. It grants the judge the possibility of using all the means of coercion and subrogation needed to ensure enforcement of court decisions. It is hoped, therefore, that the debtor will assist in this implementation in order to achieve rapid and effective results. Perhaps that will await an appropriate case where the issue is sharply developed for resolution.

Once we accept that section of the CPC can be invoked by the Prosecution in an appropriate case, this obviates the need to deal with another wrinkle presented by this section: whether different legal considerations apply to the two parts of the section. For example, in Kulukana Otim v R [] EA , the Court of Appeal, in considering section of the Ugandan Criminal Procedure Code which is, word for word, the same as our section , stated that: It will be seen that the first part of the section confers a discretion, but under the second part, if it appears to a judge that the evidence of a person is essential to the just decision of a case, there is a mandatory duty on the judge if the witness has not been called to call him himself….

Request Rejected

This is important because it would appear that the second part is triggered when the Court itself forms the opinion that the evidence to be called is essential to the just decision of the case. Section implies that once a Trial Court comes to that conclusion, the duty to call that witness is triggered. This is not the situation we have here.

The Trial Court did not make any assessment or finding that the evidence of the three witnesses it permitted to be called were essential to the just determination of the case. We must therefore conclude that the Trial Court acted pursuant to the first, discretionary part of section of the CPC.

Indeed, both the context and the application for the Prosecution makes it plain that the Prosecution intended the three new witnesses as rebuttal witnesses: they were meant to rebut the claims by the Applicant that the Accused Persons had authentic LPOs. Indeed, the Prosecution expressly comprehended the three witnesses purely as rebuttal witnesses. Why is this important? It is because unlike the obligation of the Court to call a witness who the Court finds necessary for the just determination of a case as required by the second part of section of the CPC , the right of the Prosecution to call witnesses after it has closed its case and the Accused has already been put on his defence is heavily circumscribed.

It is my view, from the reading of existing decisional law and the evolving standards of fair trial in international human rights as seen against the standards in the Constitution of Kenya, , that where a Trial Court has not made a specific finding that the evidence of a witness is essential to the just determination of the case, the Prosecution can only call further evidence after the close of their case to rebut matters arising ex improviso which no human ingenuity could foresee.

This rule has a long genealogy, finding its most famous statement in the iconic paragraph by Avory J. They stand or fall by the evidence they have given. They must close their case before the defence begins; but if any matter arises ex improviso, which no human ingenuity can foresee, on the part of a defendant in a civil suit, or a prisoner in a criminal case, there seems to me no reason why that matter which so arose ex improviso may not be answered by contrary evidence on the part of the Crown.

That rule applies only to a witness called by the Crown and on behalf of the Crown, but we think that the rule should also apply to a case where a witness is called in a criminal trial by the judge after the case for the defence is closed, and that the practice should be limited to a case where a matter arises ex improviso, which no human ingenuity can foresee, on the part of a prisoner, otherwise injustice would ensue.

While there may be room to believe that Avory J. There are at least three grounds for believing so. First, the decisional law clearly distinguishes situations when a Trial Court calls a witness pursuant to the mandatory part of section of the CPC which has not counterpart in English law and when a witness is called pursuant to the discretionary part of it.

The position unmistakably emerging from these cases is that when a Trial Court is exercising its discretion under the first part of section , it is bound by the ex improviso Rule consolidated by Avory J.

This limitation applies with even greater force when the discretion is, as here, applied at the instance of the Prosecution. Second, this rule of relatively ancient vintage has now been adopted and codified by various recent international instruments and decisions by various international Tribunals — and, in particular those dealing with international criminal law.

SCSLT , defined what rebuttal evidence and adumbrated the contours and conditions upon which such rebuttal evidence can be admitted after the Prosecution has closed its case.

DIALOGOS SOBRE O NOVO CPC MOZART BORBA 2016.pdf

A few other cases from the international criminal tribunals have applied this rule as well. See, for example, P. Suffice to say that the ex improviso rule appears to have now risen to a generally recognized rule of international law and practice and represents best practice in international law.

The ex improviso rule is also the governing rule in many countries such as Canada see, for example, R. Finally, I am of the view that the fair rights provisions enshrined in the Constitution of Kenya, seen in context lead to the unmistakable conclusion that the discretionary power donated by section of the CPC to the Trial Court to call or permit the calling of Prosecution witnesses must be constrained and not expanded to the bare needs of justice in each particular case.

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A proper reading of the section of the CPC would, therefore, be one that restricts it reach. With this in mind, I therefore adopt the ex improviso rule announced by various international tribunals as the one most in consonance with the scheme of rights enumerated in Article 50 of the Constitution.

Consequently, drawing from international best practices and our existing decisional law as analysed above, I am of the view that the Prosecution can only call rebuttal witnesses where the following conditions are satisfied: i. Such evidence must have arisen ex improviso to the extent that no human ingenuity or reasonable diligence could reasonably have anticipated, or foreseen the possibility of its being adduced by the Defence; ii.

The evidence must have probative value in the determination of the issue or issues under consideration, and in particular, in the process of assessing the innocence or culpability of the Accused; iii.

It must relate to a significant issue arising from the Defence case for the first time; iv. The Prosecution must demonstrate that: I. The calling of evidence in rebuttal is not a ploy to reopen its closed case with a view to curing certain perceived defects or shortcomings in the Prosecution case; II. That the rebuttal evidence is not being called on a collateral issue related to the credibility of the witness.

That the granting of permission to adduce the evidence in rebuttal will not in any wayviolate the principles that underlie the doctrine of equality of arms between the Prosecution and the Defence, or otherwise do violence to the doctrine of fundamental fairness or unduly delay the proceedings thereby compromising the Constitutional obligation of ensuring a fair and expeditious trial without unduly jeopardizing the rights of the Accused Person.

Applying these principles to the case at hand makes it plainly clear that the Prosecution was not entitled to call rebuttal witnesses in this case. In my view, the case turns on three issues. First, it is hardly possible to make the claim that no human ingenuity or reasonable diligence would have made the Prosecution anticipate that the Defence was going to adduce evidence that it had Local downloading Orders LPOs as a defence to the charges.

It cannot, therefore, be said to be a matter ex improviso which no human ingenuity would have expected. Secondly, it is difficult to look at the circumstances and context here and not conclude that the Prosecution is not merely seeking to shore up its case.

Third, in view of my finding above about the relative unfairness of the situation of the procedural posture that resulted in the decision to call rebuttal witnesses in the first place, it is not possible to be certain that the doctrine of fundamental fairness is not being violated.

For these reasons, I would therefore conclude that this was not an appropriate case to allow the Prosecution to call rebuttal witnesses F. Kituku took over the matter from the Honourable J. Onyiego as he then was. His arguments before the Learned Honourable J. Kituku were, essentially, the arguments he has made here. The Prosecution objected to the application to have the trial start de novo. Kituku ruled that this was an appropriate case for the case to start afresh.

He considered that the matter had dragged in the courts since — a period of more than 3 years — and that throughout the trial, the Accused Persons had been represented by Counsel. He therefore concluded that starting the trial de novo would constitute undue delay in finalizing the case and violate the provisions of Article 50 of the Constitution which, among other things, requires that a criminal trial must be started and concluded without undue delay.

Such lawsuits involve various categories: In this regard, the NCPC has laid down two crucial measures: In fact, the inclusion of a system of precedents will enable the Brazilian judicial procedure to accomplish greater predictability and equality by making use of the same decision in dealing with all parties who may be in similar legal situations with the one that gave rise to the precedent.

This may well be the most important change in the NCPC, and will require much effort and adaptation of legal professionals until it becomes truly effective from a practical point of view. Increasing Procedural Costs for Losing Parties. In various judicial systems, at the end of a lawsuit, the losing party is required to refund the lawyer fees that were paid by the winning party. Strengthening the Power of Judges in the Enforcement Proceedings.

It grants the judge the possibility of using all the means of coercion and subrogation needed to ensure enforcement of court decisions. It is hoped, therefore, that the debtor will assist in this implementation in order to achieve rapid and effective results. Better Regulations for Free Justice. The Brazilian Constitution warrants comprehensive access to the Judiciary, including to people with insufficient financial resources.

This system was regulated by Act No.

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