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Thelaw of Brazil is based on statutes and, partly and more recently, a mechanism calledsúmulas vinculantes. It derives mainly from the Europeancivil law systems, particularly thePortuguese, theNapoleonic French and theGerman (especially theGerman Civil Code).
There are many codified statutes in force in Brazil. The currentFederal Constitution, created on October 5, 1988, is the supreme law of the country. This Constitution has beenamended many times. Other important federal law documents in the country include theCivil Code, thePenal Code, the Commercial Code, the National Tax Code, theConsolidation of Labor Laws, the Customer Defense Code, the Code of Civil Procedure, and the Code of Criminal Procedure.
Brazil's laws are run by the executive, judiciary and legislative branches. In these branches, thePresident of Brazil is in charge of the executive branch. The judiciary branch is made up of theSuperior Court of Justice and theSupreme Federal Court. Brazil's legislative branch encompasses theNational Congress of Brazil.[1]
Brazilian law is largely derived fromPortuguese civil law and is related to theRoman-Germanic legal tradition. This means that the legal system is based on statutes, although a recent constitutional reform (Amendment to the Constitution 45, passed in 2004) has introduced a mechanism similar to thestare decisis, calledsúmula vinculante. Nevertheless, according to article 103-A of theBrazilian Constitution, only the Supreme Court is allowed to publish binding rules.[2] Inferiorjudges and courts, and the public administration, are hence obliged to obey the interpretations of the Supreme Court.
In more recent times, according to the judiciary structure framed in the Brazilian Constitution, judicial power is divided between the judicial branches of the states and the Federal judicial branch, and they have differentjurisdictions. The prerogatives and duties of judges are the same, however, and the differences lie only in the competencies, structures and compositions of the Courts.
In 2007, there were 1,024Law school programs in Brazil, with 197,664 lawstudents. Law schools are present in each of theStates of Brazil.[3] In 2010, the total oflawyers in Brazil were 621,885. TheState of São Paulo had the largest number, 222,807 lawyers, one third of all working lawyers in the country. The State ofRio de Janeiro had 112,515 lawyers, and the State ofMinas Gerais had 63,978 lawyers.[4]
Students studying law in Brazil take five years to complete their education at alaw school. Upon completing their studies, they need to pass an exam held by theBar Association of Brazil (Ordem dos Advogados do Brasil in Portuguese).[5]
The overallmedian income of the Brazilian lawyer was R$36,120 per year in 2007. The starting median income was R$20,040, and the top median was R$3,000,000. The Brazilianjudge had an overallmedian income of R$170,000. The starting median income was R$150,500, and the top median was R$310,500. The Brazilianprosecutors had an overallmedian income of R$150,000. The starting median income was R$140,000, and the top median was R$270,000 per year.[6] Nowadays, Brazilian judges and prosecutors, in almost all states, earn the same, and, in some states, prosecutors have a higher income.
Each state territory is divided into judicial districts namedcomarcas, which are composed of one or moremunicipalities. The 27 Courts of Justice have their headquarters in the capital of eachstate and have jurisdiction only over their State territories. TheFederal District only presents the federal-level judicial branch. Each comarca has at least one trial court, acourt of first instance. Each court of first instance has a law judge and a substitute judge. The judge decides alone in all civil cases and in most criminal cases. Only intentional crimes against life are judged byjury. The judges of the courts are nominated after a selection process. There are specialized courts of first instance forfamily litigation orbankruptcy in somecomarcas. Judgments from these district courts can be the subject ofjudicial review following appeals to the courts of second instance.
The highest court of a state judicial system is its court of second instance, the Courts of Justice. In each Brazilian state there is one Court of Justice (Tribunal de Justiça in Portuguese). Courts of Justice are courts of appeal, meaning they can review any decisions taken by the trial courts, and have the final word on decisions at state level, though their decisions may be overturned by the federal courts. Some states, such asSão Paulo andMinas Gerais, used to have aCourt of Appeals (Tribunal de Alçada in Portuguese) which had different jurisdiction. But the 45thConstitutional Amendment to theBrazilian Constitution,[7] in its article four, decreed their extinction in order to simplify the second instance structure.
Second instance judgments are usually made by threejudges, calleddesembargadores. These Courts are divided into civil chambers, which judge civil cases, and criminal chambers. Judges of the Courts ofJustice overview one another. ACourt can expel any judge who has displayed unethical behavior.
The five regional Federal Courts have jurisdiction over circuits of several states and tend to be headquartered in the largest city of their territory. The regional courts are:
There are two national superior courts making up the Supreme Court, which grantwrits ofcertiorari in civil and criminal cases: theSuperior Court of Justice (Superior Tribunal de Justiça in Portuguese) or STJ and theSupreme Federal Court (Supremo Tribunal Federal in Portuguese) or STF, the highest Brazilian court (decides issues concerning offences to theBrazilian Constitution).
The STJ is the Brazilian highest court in non-constitutional issues and grants a Special Appeal (Recurso Especial in Portuguese) when a judgement of a court of second instance offends a federalstatute disposition or when two or more second instance courts make different rulings on the same federal statute. There are parallel courts forlabor law,electoral law andmilitary law.
The STF grants Extraordinary Appeals (Recurso Extraordinário in Portuguese) when judgements of second instance courts violate the constitution. The STF is the last instance for the writ ofhabeas corpus and for reviews of judgments from the STJ.
The superior courts do not analyze any factual questions in theirjudgments, but only the application of the law and the constitution. Facts and evidences are judged by the courts of second instance, except in specific cases such as writs ofhabeas corpus.
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