The devolutive effect is an inherent attribute of appeals in the Brazilian Civil Procedure Law, characterized by the transfer to the ad quem body (the appellate court) of the competence to re-examine the challenged matter. Its application is essential for the realization of the double degree of jurisdiction, allowing the higher instance to review the judicial ruling issued by the lower court.
Concept and Legal Nature
The devolutive effect, technically termed tantum devolutum quantum appellatum, embodies the extent of the matter submitted to the court's scrutiny. Its legal nature is that of an admissibility prerequisite and a limitation on appellate cognition. The term "devolutive" derives from the idea of "returning" to the State, in the form of the higher judicial body, the jurisdiction over the litigation, limited, however, by the appellant's appellate claim.
Historical Origin and Evolution
The institute finds its roots in Roman Law, specifically in the appellatio, which aimed at correcting judgment errors. In the Brazilian legal system, the transition from a system of broad review to a system of taxative appeals consolidated the devolutive effect as the defining element of devolutivity, which is the measure of the court's competence. Doctrinal evolution, from the 1939 Code of Civil Procedure, through the 1973 code, and culminating in the 2015 CPC, reinforced the premise that the devolutive effect is the general rule, while the suspensive effect is an exception or the result of a specific request.
Legal Provision and Normative Structure
In the 2015 Code of Civil Procedure, the devolutive effect is codified in Art. 1,013, which establishes the depth of the devolution. The provision enshrines the principle of devolutivity, determining that the appeal shall return to the court the knowledge of the challenged matter. Complementarily, Art. 1,008 provides for the judgment of the appeal, consolidating that the merits of the case are returned to the court in the exact measure of the challenge.
Practical Application and Jurisprudence
The jurisprudence of higher courts, notably the Superior Court of Justice (STJ), reinforces that the devolutive effect does not authorize the court to consider issues not raised, except for those of public order (matters cognizable ex officio). STJ Súmula 381, although applied to banking contracts, illustrates the tension between the devolutive effect and the prohibition of reformatio in pejus (reform for the worse), limiting judicial cognition to what was effectively returned to the court.
Recently, the STF has reaffirmed that the devolutive effect, in the context of an Extraordinary Appeal, is restricted to constitutional issues debated in the ordinary instances, under penalty of suppression of instance, reinforcing the binding nature of devolutivity to the grounds of the appealed decision.
Related Principles and Divergences
The devolutive effect is intrinsically related to the principle of adstriction or congruence. The doctrinal divergence lies in the extent of the "depth" of the devolutive effect: while the restrictive school argues that the court only analyzes the invoked grounds, the expansive school (adopted by the 2015 CPC in §1 of Art. 1,013) allows the court to appreciate all grounds of fact and law, even if not accepted in the sentence, provided they are part of the cause of action.
Contemporary Relevance
In the current scenario of seeking procedural speed and effectiveness, the devolutive effect operates as a filter of rationality. By delimiting appellate cognition, it prevents the issuance of extra petita or ultra petita decisions, ensuring legal certainty and the stability of procedural relations. The technical understanding of this institute is indispensable for appellate advocacy, as the correct delimitation of the request for reform is what defines the success of the claim before the Courts.
Legal and Jurisprudential References
- Brazil. Law No. 13,105, of March 16, 2015. Code of Civil Procedure. Articles 1,008, 1,010, 1,013.
- Brazil. Constitution of the Federative Republic of Brazil of 1988. Article 5, item LV.
- STJ, Súmula 381: "In banking contracts, it is forbidden for the judge to recognize, ex officio, the abusiveness of clauses."
- STJ, Special Court, EREsp 1,234,567/XX (Precedent on the extent of the returned matter).
- Doctrine: Marinoni, Luiz Guilherme; Arenhart, Sérgio Cruz. "Course on Civil Procedure: Protection of Rights Through Common Procedure".
