In law, language is fundamental, and the choice of a single word can change the whole meaning of what we say. This is the case with the terms “process” and “procedure, which can even be used interchangeably in certain everyday situations; however, in the legal universe, they are not confused. Do you know the difference between process and procedure?
In simple terms, we can say that “process” is the instrument for the application of material law to the practical case, while “procedure” is the formal component of the instrument. In this post, you will see this distinction in more depth and also learn more about the types of processes and procedures under the New CPC .
What is the concept of legal proceedings?
We will begin our exploration of the difference between process and procedure with the most basic concept of procedural law, which is the concept of process itself. It can be defined as the path to be followed to obtain jurisdictional provision. This path consists of a succession of specific acts, called procedural acts, which are provided for and regulated by law.
Doctrinators point out that the process has three essential elements: the legal relationship (between plaintiff, defendant and the judge-state); the contradictory, without which there can be no process; and procedures.
What are the types of proceedings in the Civil Procedure Code?
Before proceeding to explore the difference between process and procedure, it is essential to know the types of processes provided for in the New CPC.
Analyzing the code, we identified three types of process: knowledge, execution and precautionary process, also called provisional guardianship process. The knowledge process is further subdivided into merely declaratory, condemnatory and constitutive.
In the knowledge process, we see the purest practice of jurisdiction, “saying the law”, applying the material law to the specific case. Their subspecies vary as to the objective of the process:
- when there is a merely declaratory knowledge process, the main objective is to obtain a statement from the judge on a matter in which there is uncertainty, such as the existence of a certain legal relationship between the parties;
- when there is a condemnatory knowledge process, the main objective is the application of a sanction;
- when there is a constitutive knowledge process, the main objective is to constitute a legal change in the state of affairs, for example, extinguishing the legal relationship between the parties.
In the execution process, the judicial performance obtained in a knowledge process is satisfied. In other words, it aims to enforce the sentence already handed down by the judge.
Finally, in the precautionary process, a measure is granted to preserve the right until it is possible to reach a sentence on it in the knowledge process. In this type of process, the author’s objective is to obtain provisional tutelage , which can later be converted into definitive tutelage or revoked.
What is the concept of procedure?
Continuing on the theme of the difference between process and procedure, now let’s look at the concept of procedure.
The procedure is the way in which procedural acts are to be carried out. Thus, it is closely related to the process; failure to follow the procedures may even invalidate the process. However, they do not designate the same thing. On the other hand, the procedure can be understood as a synonym for rite.
An example of what the procedure does is to determine the deadline for carrying out a procedural act. In other words, one of the main reasons for properly carrying out the procedural monitoring in your office is to meet the requirements of the procedure.
What are the types of procedures in the Civil Procedure Code?
Although there is a clear difference between process and procedure, there is at least one similarity between them; is that both are divided into three species, or types. According to the NCPC, the three types of procedure are: common, special and execution.
The common procedure is applicable to all situations where the law does not provide otherwise. It has four phases: postulatory, sanitary, instructive and decision-making.
The special procedure refers to cases where the law provides for a differentiated rite. We can find these cases both in the NCPC itself and in sparse laws. Some examples are:
- Partial Dissolution Action of the Company, in article 599;
- Family Actions, in article 693;
- Action to Demand Accounts, in articles 550 to 553;
- Monitoring Action, in article 700.
It is worth noting that the special procedures of contentious jurisdiction are between articles 539 and 718 of the NCPC, while those of voluntary jurisdiction are between articles 719 and 770.
Finally, the enforcement procedure is that applied to the different enforcement modalities, which are: compliance or enforcement of the sentence, provided for in articles 513 to 538; execution of extrajudicial documents, provided for in articles 771 to 925; executions with different provisions in sparse laws, such as the Tax Enforcement Law.
How is the common procedure developed in the New CPC?
Since the common procedure is the rule, while special procedures are the exception, it is important to know how it develops. We have already seen that there are four phases. Now, let’s see the rite of each one of them.
The postulatory phase ranges from the submission of the plaintiff ‘s petition to the submission of the defense or, if applicable, until the response to the counterclaim. It includes the defendant’s summons and, under the terms of article 334 of the NCPC, the designation of a conciliation or mediation hearing , for self-composition.
The sanitation phase focuses on clarifying the allegations. It can reach three different outcomes: the extinction of the process, the early judgment of the dispute or the remedy of the fact with the appointment of a hearing. By cleaning up the deed, we mean taking steps by the judge to eliminate defects, irregularities or possible causes of nullity in the process, which is carried out through a sanitation order.
The instructional phase basically comprises the production of evidence and the final arguments of the parties. In relation to the evidence, oral evidence is allowed, which is produced at the instruction and trial hearing, in addition to the gathering of expert evidence and even supplementing the documentary evidence that had been presented in the postulatory phase.
Finally, the decision-making phase is that in which the sentence is handed down by the judge, either after the end of the instruction and trial hearing or within 30 days, as provided for in article 366 of the NCPC.
Considering all the phases that make up the common procedure, each with its own procedural acts, it is easy to understand why a lawyer who has several lawsuits in progress at the same time may feel overwhelmed on a daily basis. That is why it is worth investing in legal software that increases the productivity of your office.
In addition, it is necessary to highlight that one of the changes of the New CPC was to unify the common procedure, which is no longer divided into ordinary, summary and summary. This change is in line with the objectives of simplifying the law, which is a strong trend.
Knowing the difference between process and procedure may seem like an unimportant knowledge, but it is this type of more conceptual knowledge that helps you better understand the logic behind the law, and they help you to be a successful lawye
