Paulo Guilherme de Mendonça Lopes and Alexandre Paranhos

Introduction
On April 3rd, the Second Panel of the Brazilian Superior Court of Justice (“STJ”) unanimously ruled a case law involving Motion for Resolution of Conflict Decisions on the Records of the Special Appeal (“EREsp”) n. 2.066.868 which was reported by the Appellate Judge Sebastião Reis Júnior.

The controversy centers on whether the 30-day deadline for filing the main claim provided in article 308 of the Brazilian Civil Procedure Code (“CPC”) has a material or procedural legal nature and whether it is counted in consecutive days or business days, as provided by article 219 of the same procedure code.

Background
The embattled judgment of the Third Chamber held that the 30-day deadline established in Article 308 of the CPC/2015 is procedural in nature and must be counted in working days (in accordance with Article 219 of the CPC).

The First Panel’s decision, in turn, ruled that the 30-day deadline for formulating the main claim (art. 308 of the CPC/2015) is of a statute of limitations of material nature and must be counted in consecutive days, not working days, a rule applicable only to procedural deadlines (art. 219, sole paragraph).

On this point, it should also be noted that after the amendment to the Brazilian Civil Procedure Code (2015) regarding the procedure for requesting preliminary injunctions, the main request must be formulated in the same records, and it is not necessary to file a new lawsuit (extinction of the autonomy of the precautionary process). The current system establishes a unified process, with an initial stage that deals with antecedent precautionary protection, with the possibility of later expansion of cognition.

Case Law
The claim in discussion was filed against the appellate decision rendered by the Third Court of the Civil Justice Court of São Paulo, deciding that the deadline to present the main order in the procedure about the interlocutory relief (art.308 CPC/15) had a procedural nature, and because of that, must be counted in the calendar days. Diverging from the paradigm that it is a deadline of material right, counted in calendar days.

The filing of the main claim, in this case, is a procedural act that produces effects in the process already underway, and the expiry of the blank period only causes the effectiveness of the measure granted to cease (art. 309, II, of the CPC/2015), a fact that does not affect the substantive right under discussion.

Therefore, the period of 30 days for the formulation of the main claim provided for in art. 308 of the Code of Civil Procedure has a procedural legal nature and, consequently, it must be counted in working days, under the terms of art. 219 of the CPC.

Comments
This case law represents an important milestone in discussing the controversial issue in STJ about the deadline for formulating the main order, establishing precedent on the matter whether it should be considered as judicial nature or material nature, and whether they should be counted in calendar days or business days.

Published in Lexology.