Legal Articles

ANALYSIS OF CASE LAW APPLIED IN CIVIL CAUSES

Summary: The jurisprudence and the practice of the courts which is an important form of expression of the law. Rulings by the STJ-Superior Court of Justice has conducted an analysis on their menu. Search to characterize civil actions, specifically the Counter Fraud Plan for Creditors and validity of legal transactions.
 
Keywords: Jurisprudence. Fraud against creditors. Business Law.
 
 
Abstract: The Jurisprudence is the practice of courts which is important form of expression of the law. Through rulings by the STJ is done the analysis on their menus. Search is Cicileo characterize the actions, precisely the Fraud Against Creditors Plan and Validity of Legal Affairs.
 
Key-Words: Jurisprudence. Fraud Against Creditors. Validity of hours of Legal Business Plan.
 
  
1 Initial Considerations
 
             There are all facts that have relevance to the legal world. To order the conduct of human beings, the law sets the facts through legal rules. Considering the inter-relations are facts that impact and affect these relations, we need a standard that regulate, built them legal effect. Therefore, it is the law that says what are the facts given to them specific consequences.
             Within the world of law suits has been the focus of the standards of planning, therefore, within the legal phenomenon in delimiar these facts, one can mention the subject to the vicissitudes in the aspect of validity. In this context it can engage the decisions of the courts, since before a suit is the legal effect of a standard.
             Although it is a matter of infinite face different situations that arise every day, there is a need to separate this article. Thus, the development of this is on two judgments of the STJ-Superior Court of Justice. The reason is that, given the legal consequences of facts, one can mention the relations arising from its Business Plan and Legal Validity and inserted in this, its defects, such as fraud against creditors. Relevant, however, is a brief history on the Jurisprudence and its structure and concept introduction.
 
2 Jurisprudência as improvement of justice
 
             Among the Romans it was the case law as a creator of law. Were the case that grew cautious. In the definition of divinarum Ulpiano Jurisprudentia est atque humanarum Rerum notitia, iusti atque inuisti Scientia (knowledge of things divine and human, the science fair and unfair) [1].
             Over time, the case law has several meanings. Among the Germans was the study of various branches of legal knowledge. The Anglo-American legal community in USA as "legal discipline more generally." In Brazil, it connotes "the practice of the courts." Because the condensate results in overviews of these decisions.

 
          The case law is an important expression of the law. Substantiate a claim to court, lawyers, listed a series of sentences or judgments by the courts prolate (...) is executed by the interpretation by the judiciary that the legal determinations latent manifested. [2]
 
             As civilized people are looking for a law guaranteeing them the social balance. For bridges of Miranda, the law is a process of social adaptation. The legal system of each nation reflects the reality of their socio-cultural community and its political representation.
             The case law is conquering new horizons. In interpreting the law, therefore, the lawyer must consider the reality that surrounds and estimate of value judgments in the legal system. For this, we need a judiciary adequately prepared and updated.
 
3 Structure of Cases in Courts
 
             The structure of Jurisprudence, the means of transmission of the text is written, preceded by oral reading to the other members of the Board. The system is very limited, although any person access to the public, because the language is very technical, requiring specific knowledge to understand it.
             The organization of information is divided into menus and Judgment. The menu presents the theme, being translated into keywords. Then a summary for this topic and information on the case (type, number, names, etc.).. The structure of Judgment is required to appear court decision and the report of events that culminated in the decision. Following is described the vote of the rapporteur and other members of the Board or Collegiate Class.
 
Object 4: Validity of the business legal
 
             In order to better analyze the ruling, it is necessary to form part of the configuration of the original, holding up the number of appeals, the name of the minister, and the Summary Judgment.
 
Superior Court of Justice
SPECIAL APPEALS No. 784167 - PR (2005/0160115-2)
RAPPORTEUR: MINISTER LUIZ FUX
Abstract
CIVIL PROCEDURE. SPECIAL APPEALS. ADMINISTRATIVE. DIRECT expropriation. DISCUSSION ABOUT THE AREA. Art. 34 of the DL. 3365/41. LAND OF BORDER. BANGKOK.
JUDGMENT
Visa, reported and discussed these documents, the Ministers of the first class of the Superior Court of Justice agreed, in accordance of the votes and phonographic notes below, unanimously dismissed particular, under the vote of Mr. Minnistro Rapporteur. The Honorable Ministers Theory Albino Zavaski, Denise Arruda (President) and Jose Delgado voted with the sr. Minister Rapporteur.
Absent, jusificadamente, Mr. Minister Francisco Falcão.
Brasília (DF), April 1, 2008 (date of trial)
MINISTER LUIZ FUX
Rapporteur [3]
 
             The purpose of the civil procedural law is to fulfill the legal interests of peace, serving the law to the case thus compounding disputes. He is driven by interests of a party in order to protect their rights.
             In this case, is the relevant Business Legal Business Legal and defect, because it is an agreement that will ultimately result in inefficiency. The Business Law is a standard practice established by the parties. [4] Thus, not just the mere expression of will, it is necessary that this is according to law.
             In a dispute that arises from a legal transaction, the courts must determine the validity of the standard, since there are cases where there is a will, but with abuse of law, causing cancellation of this is bad for business. [5]
             Among the elements of the legal validity of the business, according to Article 166, II, must be lawful object, and determined possible [6]. Otherwise, the business is zero. In this case there is a discussion on the legitimacy of the object, making irrelevant the question of its nullity before the deal done [7].
             In null [8] is a deprivation of the legal effect that the business would have. Negotiating an act is considered as zero had never existed, and its invalidity effect from the time of its conclusion. To make a bad deal, however, it is necessary that it has entered in terms of validity, as is plain:
 
           (...) In order to declare an act invalid negotiation is needed it worth, which presupposes its existence, then the act is no meaning in Seara legal ny, the fact is inidôneo to produce legal consequences, so that the law not to regulate, because there is no need to discipline the thing. [9]
 
             The Articles 166, 168 and 169 of the Code Civil/2002 based the ruling, because its device address and the question of absolute void and of no legal.
 
5 Fraud Against Creditors
 
             To elucidate on Fraud against creditors, set in the case, there must also play their part.
 
Superior Court of Justice
SPECIAL APPEALS No. 518678-RJ (2003/0054062-3)
COMMENTS: Minister Nancy Andrighi
 
Abstract
CIVIL AND COMMERCIAL PROCEDURE. ACTION REVOCATÓRIA. Fraud against creditors. CANCELLATION OF acts committed by former ADMINISTRATOR AND HIS ex-wife. POSSIBILITY.
JUDGMENT
Visa, reports and discussed the case, the ministers agreed the Third class of the Superior Court, in accordance of the votes and phonographic notes in the file, unanimously, not knowing the particular feature, according to the vote Mr. Minister Rapporteur . The Honorable Ministers Humberto Gomes de Barros and Ari Pargendler voted with the Minister Rapporteur.
Brasília (DF), October 16, 2007 (date of trial)
MINISTER Nancy Andrighi
Rapporteur [10]
 
             Besides being a civil, commercial is because it is a company involved in the dispute. This is legal specification of the part.
             In Summary quoted above, is a fraud against creditors because it is clearly intended to circumvent the law and harm others [11]. Plain on the Fraud:
 
Fraud against creditors is the malicious practice, the debtor, in acts that defalcate his heritage with the aim to make it safe for execution on a debt to the detriment of the rights outside Credit. [12]
 
             The fraud involving the sale of property are subject to cancellation by Action Pauliana or Revocatória. This is used for the annulment of the fraudulent transfer to the creditor to have his claim satisfied. Under the Civil Code in 2002, canceled the fraudulent business, the benefit to accrue from the collection on which they have to make the contest of creditors. [13]
             The requirements for the proposal of an Action Pauliana are the consilium fraud and Eventus damni. The first means bad faith and the second is the act prejudicial to the creditor. The prior requirement of credit is also to promote this action. This, together with Scientia fraud is fraud. This in turn means that the creditor must know or discover the fraud to seek the annulment of the business. However, all three elements do not need, necessarily, occur together. Especially, in the event of the other conditions are suspected.
             Thus, the debtor is in the passive part of the action, together with the person or the third party with whom acted in bad faith. In recognition of the defect by Pauliana Action will prolata a sentence anulatória. However, there are doctrines that do not agree with that. The final decision of the Action Pauliana is simply declaratory of the ineffectiveness of the act charged in fraud against creditors [14] or a fraud which vitiates the transaction is subject to cancellation [15]. Therefore, it is relevant the distinction between cancellation and invalidation: meets the first part, the second effect erga omnes.
 
6 Final considerations
 
             Considering the foregoing, it appears that both the judgments, the ruling is the annulment of the act legal. Specifically in the ruling that is about the object of legal transactions, there is a defect found. The object of this should be lawful, possible and ascertainable, otherwise the business will be zero.
In Fraud Against Creditors are used many fraudulent artifices to circumvent the creditor or the law. In order to annul the fraudulent action, the action appears Pauliana or Revocatória. Under such a ruling was really a fraud on the creditors undermine, carcetrística of bad faith.
The deal will be void when it ends, ie as if it had never existed: Samson is required by law, except, only, if found good faith.
 
 
 
REFERENCES
 
BORTOLUZZI, Valéria Lensen, Desiree, Motta-Roth. It is the vote - a contextual analysis of the configuration of the structure and potential of the genre of the text of the law. Available at: http://jus2.uol.com.br/doutrina/texto.asp?id 2792. Acesso em: 30 jun. 2008
DINIZ, Maria Helena. Course of Brazilian law: General theory of law civil.20.ed. São Paulo: Saraiva, 2003.
Gagliano, Pablo Stolze; FILHO, Rodolfo Pamplona. New course in civil law. São Paulo: Saraiva, 2008.
GIRARDI, Leopoldo Justino. Elementary notions of history of law. Santa Rosa: Coli, 2006.
MIRANDA, Bridges of. Treaty of law, I lll. São Paulo: Bookseller, 2001.
NADER, Paulo. Introduction to the study of law. 21.ed. Rio de Janeiro: 2003.
SUPERIOR COURT OF JUSTICE. Available at: http://www.stj.gov.br Acesso em: 18 jun. 2008.
TEIXEIRA, Sálvio de Figueiredo. The case law as source of law and improvement of the judiciary. Available at: Accessed on 20 June. 2008.
Vade Mecum SARAIVA.

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