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Introduction to Brazil's Legal System

Brazil is a civil law country with its legal system based on codes and legislation enacted primarily by the federal legislative power as well as the states and municipalities.  It is a federative republic formed by the indissoluble union of the states, municipalities and the Federal District.  The constitution (external link) (Constituição da República Federativa do Brasil – C.F.) establishes the legislative, the executive, and the judiciary as the three branches that compose the Brazilian government.

The National Congress is composed of the Chamber of Deputies and the Federal Senate and it exercises its legislative power through the legislative process.  The executive branch encompasses the President of the Republic and the Ministers of State.  The judiciary consists of the Federal Supreme Court; the National Council of Justice; the Superior Tribunal of Justice; the Federal Justice; Labor Justice; Electoral Justice; Military Justice; and State Justice.

Levels of the Court System: Brazilian Tribunals and Courts

Highest Court: Federal Supreme Court

Judicial Control: National Council of Justice

Higher Courts:
Superior Tribunal of Justice
Superior Tribunal of Labor
Superior Electoral Tribunal
Superior Military Tribunal

Specialized Courts:

Federal Justice

  • Federal Regional Tribunals
  • Federal Judges
  • Itinerant Courts

Labor Justice

  • Regional Tribunals of Labor
  • Labor Law Courts

Electoral Justice

  • Regional Electoral Tribunal
  • Electoral Judges
  • Electoral Boards

Military Justice

  • Military Tribunals
  • Military Courts

State Justice

  • Tribunals of Justice
  • State Courts
  • Itinerant Courts
  • Special Courts
  • Courts of Peace

Federal Supreme Court (external link) (Supremo Tribunal Federal - STF)

Composition: Federal Constitution, article 101:

Eleven Justices are chosen from among citizens over 35 and less than 65 years of age; notable juridical learning; and spotless reputation.  Appointed by the President, after the nomination has been approved by the absolute majority of the Federal Senate.

  • Competency: Federal Constitution, article 102:

Responsible, essentially, for safeguarding the Constitution.

National Council of Justice (external link) (Conselho Nacional de Justiça - CNJ)

Composition: Federal Constitution, article 103-B:

Composed by fifteen members with more than 35 and less than 66 years of age, for a term of two years, one continuation admitted, the members being:

  • One Justice each from the Federal Supreme Court, the Superior Tribunal of Justice, and the Superior Tribunal of Labor, appointed by the respective court;
  • One Justice from a State Tribunal of Justice, appointed by the Federal Supreme Court;
  • One judge from a Federal Regional Tribunal, appointed by the Superior Tribunal of Justice;
  • One federal judge, appointed by the Superior Tribunal of Justice;
  • One judge from a Regional Court of Labor, appointed by the Superior Tribunal of Labor;
  • One labor law judge, appointed by the Superior Tribunal of Labor;
  • One member from the federal Public Prosecutors Office, appointed by the Attorney-General of the Republic;
  • One member of the state Public Prosecutors Office, chosen by the Attorney-General of the Republic among the names appointed by the competent bodies of each State institution;
  • Two lawyers, appointed by the Federal Council of the Brazilian Bar Association;
  • Two citizens, of notable juridical learning and spotless reputation, one appointed by the Chamber of Deputies and the other appointed by the Federal Senate.
  • Competency: Federal Constitution, article 103-B, §4:

The Council is entrusted with the control of the administrative and financial activities of the Judiciary and the fulfillment of the functional duties of the judges.

Composition: Federal Constitution, article 104:

Composed of a minimum of 33 Justices, chosen from among Brazilians over 35 and less than 65 years of age. Appointed by the President of the Republic, after their nomination has been approved by the absolute majority of the Federal Senate.

  • Competency: Federal Constitution, article 105.

Federal Justice (external link) (Justiça Federal)

Federal Regional Tribunals and Federal Judges

(Tribunais Regionais Federais e Juízes Federais)

Composition: Federal Constitution, article 107:

Composed of a minimum of 7 Judges appointed by the President of the Republic from among Brazilians over 35 and less than 65 years of age:

1/5th - must be attorneys with more than ten years of professional experience and members of the Public Prosecutors Office with more than ten years in the position.
4/5th federal judges with more than five years in the position.

  • Competency: Federal Constitution, article 108.

Labor Justice (external link) (Justiça do Trabalho)

Superior Tribunal of Labor (external link) (Tribunal Superior do Trabalho - TST)

Composition: Federal Constitution, article 111-A:

Composed of 27 Justices, chosen from among Brazilians over 35 and less than 65 years of age, appointed by the President of the Republic after their nomination has been approved by the absolute majority of the Federal Senate:
1/5th - must be attorneys with more than ten years of professional experience and members of the Labor Public Prosecutors Office with more than ten years in the position. 4/5th - must be labor judges from the Regional Courts of Labor.

  • Competency: Federal Constitution, article 114.

Regional Tribunals of Labor (external link) (Tribunais Regionais do Trabalho - TRT)

Composition: Federal Constitution, article 115:

Composed of minimum of 7 Judges appointed by the President of the Republic from among Brazilians over 30 and under 65 years of age:
1/5th - must be attorneys with more than ten years of professional experience and members of the Labor Public Prosecutors Office with more than ten years in the position. 4/5th - must be labor law judges.

  • Competency: Federal Constitution, article 114.

Labor Law Courts

(Varas do Trabalho)

Composition: Federal Constitution, article 116:

A single judge is assigned to each Labor Law Court.

  • Competency: Federal Constitution, article 114.

Electoral Justice

(Justiça Eleitoral)

Superior Electoral Tribunal (external link) (Tribunal Superior Eleitoral - TSE)

Composition: Federal Constitution, article 119:

Composed of a minimum of 7 members, chosen:
Three judges are chosen through election, by secret vote, from among the Justices of the Federal Supreme Court. Two judges are chosen through election, by secret vote, from among Justices of the Superior Tribunal of Justice. Two judges are appointed by the President of the Republic, chosen from among lawyers nominated by the Federal Supreme Court who have notable juridical learning and spotless reputation.
Competency: Federal Constitution, article 114.

  • Competency: Electoral Code, Law No. 4,437 of July 15, 1965, arts. 22 and 23.

Regional Electoral Tribunal (external link) (Tribunal Regional Eleitoral - TRE)

Composition: Federal Constitution, article 120, §1:

Composed of a minimum of 7 members, chosen:

  • Two judges are chosen from among Justices of the State Tribunal of Justice.
  • Two judges are chosen by the State Tribunal of Justice among career judges.
  • One judge is chosen by the Federal Regional Tribunal from among its own members;
  • Two judges are appointed by the President of the Republic, chosen from among lawyers nominated by the State Tribunal of Justice who have notable juridical learning and spotless reputation.
  • Competency: Electoral Code, Law No. 4,437 of July 15, 1965, arts. 29 and 30.

Military Justice

(Justiça Militar)

Superior Military Tribunal (external link) (Superior Tribunal Militar - STM)

Composition: Federal Constitution, article 123:

Composed of 15 life Justices, appointed by the President of the Republic, after their nomination has been approved by the Federal Senate:

  • Three are chosen from among General officers of the Navy; Four from among General officers of the Army;
  • Three from among General officers of the Air Force: All of them must be in active service and be at the highest rank in their careers;
  • Five from among civilians: Three judges are appointed by the President of the Republic, chosen from among lawyers, 35 years of age or older, who have notable juridical learning, spotless reputation and more than 10 years of professional experience. Two from among auditor judges and members of the Public Prosecutors Office of the Military Justice.
  • Competency: Federal Constitution, article 124.

State Justice

(Justiça Estadual)

State Tribunals (external link) and Judges (Tribunais e Juízes Estaduais)

Composition: Federal Constitution, article 125:

The states must organize their judicial system observing the principles established in the Constitution.

  • Competency: Federal Constitution, article 125, §1.

The competence of the courts shall be defined in the Constitution of the state, and the law of judicial organization shall be the initiative of the Tribunal of Justice.

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Official Sources of Law

Official Gazettes

The Brazilian official press (Impressão Régia) was created on May 13, 1808 by Acting King Dom João with the objective of printing, with exclusivity, all normative and administrative acts of the government.  Later, on October 1st, 1862, the government decided to create an Official Gazette (Diário Oficial) for the purpose of publicizing the government’s legal acts, which it has been publishing continuously since that time.

Most recently, on December 16, 2002 the government issued Decree No. 4,520 establishing that publication of the following documents be entrusted to the Executive Power, through the National Press: all laws and other acts resulting from the legislative process as determined by the Constitution; treaties, conventions, and other international acts approved by the National Congress; official acts, excluding the ones of internal nature, of the Federal Public Administration; of the Judicial Power; and of the Federal Audit Court.

All publications mentioned in Decree No. 4,520 are published in the Official Gazette of the Union (Diário Oficial da União) in the Justice Gazette (Diário da Justiça).

The electronic editions of the Diário Oficial da União and of the Diário da Justiça, available at the official web site of the National Press, produce the same effects as the printed ones.

Codes, Consolidations and Random Legislation

The Brazilian law can be found in codes, consolidations, or throughout numbered legislation published in the Official Gazettes. A code is a methodical set of rules of a specific field of law intended to be a body of permanent law. Between random legislation and codification there is a consolidation of laws. Not as systematic as a code, it only assembles legislations in the same field of law in an organized single volume. Each State and the Federal Union have their own daily official publication or Official Gazettes (Diário Oficial).

Jurisprudence

The word jurisprudence comes from Latin and expresses the wise knowledge of the law.  In its modern sense, it means the science of the law wisely applied.  In Brazil, it expresses the collection of decisions on the same issue or the collection of decisions of a specific tribunal; the higher the court, the more authoritative its interpretation of enacted law.  According to article 479 of the Brazilian Code of Civil Procedure (Código de Processo Civil), the decisions of a tribunal made by the absolute majority of its members are the object of a Súmula and constitute a precedent in the process of uniforming the jurisprudence.

Judicial Decisions

In 2004, Congress amended the Constitution and established that the final decisions issued by an absolute majority of the members of the Federal Supreme Court (STF) would have a binding legal effect on the entire Judiciary.  The so-called Súmulas Vinculantes are now regulated by Law No. 11,417 of December 19, 2006, and enable the Judiciary to judge in a definitive and final way thousands of cases dealing with the same issue.

Scholars

Scholars play a key role in the Brazilian legal system.  Their opinions, conveyed through books or articles, compose what is called “the doctrine.”   The purpose of the doctrine, in many cases, is to clarify the enacted law.  The more reputable the scholar, the more weight will be granted to his or her interpretation.  From the legislative to the executive, from the judiciary to lawyers and administrators, the legal community widely relies upon scholars’ interpretations.

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Print Sources

Codes and Relevant Legislation:

Civil Code

(Law No. 10,406 of January 10, 2002) Código Civil e Legislação Civil em vigor, Theotônio Negrão, José Roberto F. Gouvêa, 25ª ed., São Paulo, SP: Editora Saraiva, 2006. KHD404 2006 WEST

Code of Civil Procedure

(Law No. 5,869 of January 11, 1973) Código de Processo Civil e Legislação Processual em vigor, Theotônio Negrão, José Roberto F. Gouvêa, 37ª ed., São Paulo, SP: Editora Saraiva, 2005. KHD2574 2005 WEST

Commercial Code

(Law No. 556 of June 25, 1850) Código Comercial e Legislação Complementar Anotados, Fábio Ulhoa Coelho, 6ª ed., São Paulo, SP: Editora Saraiva, 2003. KHD1054 2003 WEST

Consumer Defense Code

(Law No. 8,078 of September 11, 1990) Código de Defesa do Consumidor Comentado: Lei No. 8.078 de 11.9.90 com Coletânea Atualizada de Jurisprudência, Eduardo Gabriel Saad, 6ª ed., São Paulo, SP, Brasil: LTr, 2006. KHD3739.A31199 S23 2006 WEST

Consolidation of Labor Laws

(Decree-law No. 5,452 of May 1, 1943) CLT e Legislação Correlata, Obra Coletiva de Autoria da Editora Revista dos Tribunais, São Paulo, Editora Revista dos Tribunais, 2005. KHD1784 2005

Child and Adolescent Statute

(Law No. 8,069 of July 13, 1990) Estatuto da Criança e do Adolescente e Legislação Correlata, Coord. Giselle de Melo Braga Tapai, São Paulo: Editora Revista dos Tribunais, 2004. KHD464.M54 A3 2004 WEST

Tax Code

(Law No. 5,172 of October 25, 1966) Código Tributário Nacional: Comentários, Doutrina, Jurisprudência, Jose Jayme de Macêdo Oliveira, 3ª ed., São Paulo, SP: Editora Saraiva, 2007. KHD4597.A311966 O45 2007 WEST

Brazilian Traffic Code

(Law No. 9,503 of September 23, 1997) Comentários ao Código de Trânsito Brasileiro, Arnaldo Rizzardo, 6ª ed., São Paulo, SP, Brasil: Editora Revista dos Tribunais, c2007. KHD4183.A311997 R59 2007

Brazilian Code of Telecommunications

(Law No. 4,117 of August 27, 1962) Código Brasileiro de Telecomunicações e Legislação Complemetar, Ministério das Comunicações, Departamento Nacional de Telecomunicações. KHD4380.A31962 A7 1980z

The Code does not reflect the recent changes in the legislation that regulate the telecommunications sector in Brazil.  Please also consult:
Constitutional Amendment No. 8, of August 15, 1995 (external link);
Law No. 9,295, of July 19, 1996 (external link);
Law No. 9,472, of July 16, 1997 (external link);
Decree No. 2,338 of October 7, 1997 (external link) ; and
Decree No. 2,534, of April 02, 1998 (external link).

Electoral Code

(Law No. 4,737 of July 15, 1965) Código Eleitoral e Legislação Correlata com Notas Remissivas, eds. Vinicius Vieira, Priscila Tanaca, São Paulo: Editora Quartier Latin do Brasil, 2006. KHD3053 .A28 2006 WEST

Industrial Property Code

(Law No. 9,279 of May 14, 1996) Propriedade Intelectual: Propriedade Industrial, Direito de Autor, Software, Cultivares, Newton Silveira, 3ª ed., Barueri, SP, Brasil: Manole, 2005. KHD1570 .S57 2005

Forest Code

(Law No. 4,771 of September 15, 1965) Código Florestal Comentado, Luis Carlos Silva de Moraes, São Paulo: Editora Atlas, 1999. KHD3886.A31998 M67 1999 WEST

Mining Code

(Decree-law No. 227 of February 28, 1967) Código de Mineração e Legislação Correlata, Brasília: Senado Federal, Secretaria Especial de Editoração e Publicações, Subsecretaria de Edições Técnicas, 2003. KHD3924 2003 WEST

Code of Water

(Decree No. 24,643 of July 10, 1934) Código de Águas e Legislação Correlata, Brasília, Senado Federal, Secretaria Especial de Editoração e Publicações. Subsecretaria de Edições Técnicas, 2003. KHD3310 .A28 2003 WEST

Brazilian Code of Aeronautics

(Law No. 7,565 of December 19, 1986) Código Brasileiro de Aeronáutica, Organização, Notas e Revisão, Emílio Sabatovski, Iara P. Fontoura, Karla Knihs, Curitiba, PR: Juruá Editora, 2004. KHD4250 .A28 2004 WEST

Penal Code

(Decree-law No. 2,848 of December 7, 1940) Código Penal Comentado, Guilherme de Souza Nucci, 6ª ed., São Paulo, SP, Brasil: Editora Revista dos Tribunais, c2006. KHD5414.3194 .N83 2006 WEST

Code of Criminal Procedure

(Decree-law No. 3,689 of October 3, 1941) Código de Processo Penal Comentado, Guilherme de Souza Nucci, 5ª ed., São Paulo, SP, Brasil: Editora Revista dos Tribunais, c2006. KHD5814.31941 .N83 2006 WEST

Military Penal Code

(Decree-law No. 1,001 of October 21, 1969) Comentários ao Código Penal Militar, Jorge César de Assis, Curitiba: Juruá Editora, 2006. KHD5248.A311969 A84 2006

Code of Military Procedure

(Decree-law No. 1,002 of October 21, 1969) Código de Processo Penal Militar Anotado, Jorge César de Assis, Curitiba: Juruá Editora, 2004. KHD5280.A311969 A8 2004 WEST

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Web Sources

Legislation:

Government Sites:

English Translations / Web sites

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Last Updated: 03/07/2014