21/05/2013
Fine on appeal does not inhibit procrastinating right to appeal in another procedural stage Autor: Supremo Tribunal de Justiça
The lack of advance payment of a fine imposed on appeal inadmissible or unfounded, aiming procrastinating, do not preclude the submission of appeal in other instances and other procedural steps. This was the understanding of the Fourth Chamber of the Superior Court of Justice (STJ) in the judgment of the special appeal of Brazil Telecom.
The company was fined by STJ as the rule laid down in Article 557, paragraph 2, of the Code of Civil Procedure (CPC), interlocutory appeal by bringing in special feature - which was considered procrastinating - still in the discovery phase. At the stage of execution of the judgment, the company submitted an interlocutory appeal against the judge's decision that dealt with matters other than the one discussed in the STJ.
Paragraph 2 of Article 557 says that "when clearly inadmissible or unfounded the offense, the court condemn the aggravation to pay the compounded fine between one and ten percent of the adjusted value of the cause, getting the interposition of any other resource conditioned upon deposit of their value. "
The Court of Rio Grande do Sul (TJRS), based on this rule, did not know the interlocutory appeal because the fine imposed by the Supreme Court was only collected after its filing. According to TJRS, prior payment of the fine was to admission of the appeal and, therefore, the late settlement of the fine would be sufficient to prevent the presentation of any appeal.
The Brazil Telecom argued that it is illegal to demand the payment of a fine as a condition for filing an appeal which addresses a separate issue, fixed by another court and another procedural stage. Dissatisfied with the judgment of high school, appealed to the Supreme Court so that the Court was manifested on the interpretation of the device.
Ethics procedural
The Fourth Class reformed understanding of TJRS. CPC explained that, in order to maintain the authority of court orders, procedural ethics between the disputing parties and the effectiveness and speed of adjudication, impose penalties for those who abuse the procedural law and act in bad faith in the process.
For ministers, the previous deposit of fine only prevents the "analysis of the merits of subsequent appeal that aims to challenge the same matter already decided, and in respect of which the penalty was imposed."
According to Minister Luis Felipe Solomon, rapporteur of the appeal, the fact that the company do or not to pay the fine imposed by the Supreme Court does not interfere with an appeal in another procedural stage to question different matter.
The Panel decided that "the payment of the fine is prior condition for the admissibility of any recourse only against the judgment itself that penalized", but this condition does not extend to any other decision against which it intends to use in the future in different procedural stage.
With this understanding, the Fourth Chamber granted the appeal of Brazil Telecom and established that the court of origin to examine the interlocutory.
