Knowing the differences in the different terms and conduct of law professionals is essential in any legal career. First, because the professional who chooses this option has to be a natural student.
After all, laws are updated through PEC (Constitutional Amendment Proposal) and other proposals, and among jargon. Differentiating the many modalities of law is essential to assist both the concurseiro and those who choose a career in the private sphere.
In addition, it is possible to confuse – especially for beginners, terminologies. Sometimes, even with similar nomenclatures, the concepts point to totally different sides.
To resolve some common doubts, the blog Acontece LFG selected explanations about, at first, what Civil Law is, Civil Procedural Law, as well as the same topics on Criminal Law and Criminal Procedural Law. Check it out below.
A set of regulatory norms for all rights and obligations related to people and their relationships as participants in a society, as well as what concerns their assets, are matters covered by Civil Law.
In addition, it is in Civil Law that obligations and rights of companies, things, family and succession law are included. Governed by the Civil Code, Civil Law has a series of basic principles, namely:
- Principle of Personality: ensures that every individual is recognized as such;
● Unattainable Family Principle: understands that the family nucleus is extremely important for the formation of this individual;
● Principle of Social Solidarity: refers to the importance of reconciling the interests of the collective with the private interests according to the social relevance of property and legal business;
● Principle of Autonomy of the Will: it is based on the assessment that each individual has the legal capacity to practice or abstain from acts, according to their will;
● Principle of Legitimacy of Inheritance and the Right to Test: ensures that each human being can, according to his will, transfer his assets to his heirs;
● Principle of Individual Property: ensures that each citizen has, through his work, that his personality is externalized by the assets he has, so that they are considered his patrimony.
Brazilian Civil Code
Established by Law 10,406 , of January 10, 2002, effective from January 11, 2003, the current Brazilian Civil Code replaced and renewed the guidelines of the previous Code, which dated 1916. There are 2046 articles that guide the paths in the regarding the rights and duties of each Brazilian citizen.
Divided into two parts – General and Special, the document has in general three books referring to People, Goods and Legal Facts. In the Special section there are five books, divided into: Law on Obligations, Company Law, Law of Things, Family Law and Succession Law.
Protect order and social peace. These are the direct objectives of Criminal Law. After all, it is a branch of law that takes care of crimes, crimes from regulation to the application of penalties. However, it is Criminal Law that also dictates the duties and rules that each individual must follow. Through the breach of certain conduct and behavior imposed by law, the penalties are for administrative punishments – such as fines, for example, or restrictive – on the individual’s detention.
Thus, anyone who puts others at risk or harms others is judged based on criminal law. It is in the Brazilian Penal Code (CPB) that types of crimes, penalties, aggravating and mitigating factors are provided for offenders. Subject to changes and revisions, the CPB works in accordance with society’s changes in favor of also defending crimes against fundamental legal assets. Within this context, crimes are characterized by theft, theft – against property, homicide – against human life and coercion – against individual freedom.
The crimes are classified by different categories that take into account the subject, the conduct, the number of victims and those involved, as well as the conduct and practice of these crimes.
Criminal law is based on the following principles:
- Principle of Legality or Legal Reserve: if there is no law, nor a penalty that defines it as a crime, there is no crime;
● Principle of Priority of the Law: there is only crime and punishment if the legislation that defines them is in force;
● Principle of Prohibition of Analogy (in malam partem): it dictates that the crime cannot be adapted to another simply by the similarity of the facts
● Principle of Minimal Intervention: it dictates that the State can only intervene if the other branches of the Law cannot prove and nor to prevent illicit conduct;
● Principle of Irretroactivity of the Most Severe Law: defends that the Law can only go back if it is to the benefit of the defendant;
● Principle of Offensiveness: It is not enough that the conduct is immoral or sinful, it must offend a legal good by causing an actual injury or a concrete danger to the good;
● Principle of Insignificance or Trifle: it is based on the assumption that there is a minimum of damage to the legal good to penalize;
● Principle of Fragmentarity: the State can only intervene in the most serious cases.
Civil Procedural Law
Guarantee public order, through all the laws, rules and principles that are part of the jurisdiction in order to solve and solve problems and conflicts are linked to Procedural Law. It is this type of law that dictates the applicability of laws and penalties by the State. In this way, it can be said that everything that applies to judicial proceedings – criminal or civil, is supported by procedural law that supervises the organization of courts and all parties involved in proceedings.
Procedural Law is divided into Civil Procedural Law, Labor Procedural Law, Administrative Procedural Law, Constitutional Procedural Law, Criminal Procedural Law and Labor Procedural Law. According to the set of rules established in each of the above areas, it is procedural law that understands all processes: from application to the final sentence. It is also one of the main instruments in the fulfillment of Substantial Law, as it regulates jurisdiction and acts autonomously – free from other instances of the Law. The main basic concepts are jurisdiction, action and process, being:
- Jurisdiction: this is the role that the State exercises, through the Judiciary, to ensure that the maximum number of items are fulfilled;
● Action: an action is made up of the legitimacy between the parties involved, the legal possibility and the procedural interest – also called the interest to act;
● Process: it is the instrument through which the jurisdiction is applied by the State, so that justice is fulfilled through the laws, in a correct way.
The general principles of procedural law are:
- Principle of Isonomy: everyone is equal before the Law;
● Action Principle: also called the Demand Principle, this is the initiative to provoke jurisdiction. This principle stems from the need for justice to be carried out and generally arises from the movement of interested parties;
● Principle of Procedural Loyalty: refers to the guarantee that the exercise of justice is applied, through morality and seriousness;
● Principle of Officiality: through this principle the State can repress the offender of a criminal rule;
● Principle of Impartiality: ensures that justice is served impartially by the judge.
● Principle of Free Investigation and Examination of Evidence: Lawyers, Prosecutors, Investigators and Judges take care to initiate the investigation of causes and evidence, as well as allegations of real truth and formal truth;
● Principle of Procedural Impulse: it is the guarantee of the continuity of the process until all possibilities of actions by the Judiciary are over;
● Principle of Contradictory and Broad Defense: this is the guarantee that both the defendant and the plaintiff of the judicial process can present their arguments;
● Principle of Economics and Instrumentality of Forms: this principle dictates that all processes will have their Law enforced with the best cost-benefit ratio;
● Advertising Principle: it is the principle that guarantees that all information is not confidential for Magistrates, Prosecutors and Lawyers, in addition to the people;
● Principle of Double Degree of Jurisdiction: this involves the establishment and review of cases that have already passed the judgment of a judge, until the full satisfaction of the applied law is obtained;
● Principle of Orality: this is what guarantees documentation in procedural acts;
● Principle of the Judge’s Physical Identity: it is what dictates that the same Judge must apply the Law from the opening until the promulgation of the final sentence in a process;
● Principle of Motivation of Judicial Decisions: it is the presentation of grounds and arguments similar to the decisions of the proceedings;
● Principle of Availability and Unavailability: this is what dictates that all parties involved exercise their right or not through the Judiciary;
● Principle of Free Conviction: after the presentation and evaluation of evidence and all testimonies in a case, it is the principle that gives the Judge the possibility of a free conviction about the case.
In addition to these, there are the Infraconstitutional Principles of Procedural Law, being:
- Device Principle: also known and called the Principle of Inertia, the Device Principle is provided for in Article 2 of the Civil Procedure Code (CPC). It is what demands that Brazilian jurisdiction only be initiated after the provocation of one of the parties;
● Principle of Instrumentality: provided for in Arts. 154 and 244 of the CPC, this principle provides that procedural acts do not depend in a specific way;
● Principle of Rational Persuasion: also known as the Principle of Free Motivated Conviction, this principle is provided for in Art. 371 in the CPC. It is this person who ensures that the Judge can evaluate the evidence according to his personal conviction;
● Principle of Good Faith: predicted in the Arts. 5, 77, 80, 322, §2 and 489 of the CPC, it is considered said that the parties must act with respect and integrity at all stages of the process.
Criminal Procedural Law
Conceptualized in three aspects, Criminal Procedural Law acts by means of systematic and methodical knowledge of the norms of criminal proceedings. In this way, the scientific, objective and subjective aspects, govern the set of norms of the legal system that regulate the criminal process. In the subjective scope, Criminal Procedural Law works with the possibility of acting during the process.
In addition to the principles, there is the Criminal Procedural Law that establishes a set of rules and regulations that regulate Criminal Law. The criminal process covers public freedoms, unavailable rights and protects dignity, through rights that cannot be given up. Among them are life, freedom, physical and moral integrity and heritage, for example.