The term "infringing" (infringente) designates the appellate nature aimed at reforming a non-unanimous collegiate decision, acting as a guarantee instrument for the adversarial system and the double degree of jurisdiction. In the Brazilian legal system, it manifests predominantly through "embargos infringentes" (infringing appeals), a mechanism dedicated to the prevalence of the dissenting vote in court rulings, ensuring the stability of legal certainty and the protection of due process of law.
Concept and Foundation
The institute of "embargos infringentes" has the legal nature of an ordinary appeal with linked grounds, the scope of which is the re-discussion of merit matters decided by a collegiate body, specifically when the appellate decision (acórdão) is not unanimous. The essence of the institute lies in valuing the dissenting vote, which, due to its legal reasoning, deserves a new appraisal by the court, aiming at the rectification of a decision that did not obtain the full adherence of its members.
From a doctrinal point of view, the term "infringente" derives from the Latin infringere, which refers to the idea of breaking or violating. Procedurally, the appeal seeks to "infringe" the effectiveness of the challenged decision so that the unfavorable result is replaced by the thesis supported in the dissenting vote. It differs from "embargos de declaração" (motion for clarification), because while the latter aims at the integration or clarification of the judgment (Art. 1,022, CPC), the "infringentes" attack the merit of the collegiate decision.
Historical Evolution and Contextualization
Historically, the "embargos infringentes" appeal was instituted with the objective of ensuring that decisions rendered by a simple majority in courts could be re-evaluated, giving greater weight to internal divergence. In Comparative Law, analogous institutes, such as the dissenting opinion in the Common Law system, function as a seed for future jurisprudential revisions, whereas in Brazilian Law, the "embargos infringentes" system was consolidated as an autonomous appeal.
It is imperative to note that the 2015 Code of Civil Procedure (Law No. 13,105/2015) sought to simplify the appellate system, extinguishing "embargos infringentes" as an autonomous appeal in civil proceedings. However, the institute remains in force in specific statutes, notably in Criminal Procedure (Art. 609, sole paragraph, of the Code of Criminal Procedure) and Labor Procedure, maintaining its relevance in protecting the fundamental guarantees of the accused and the worker.
Application in Criminal and Labor Procedure
In the criminal sphere, Art. 609, sole paragraph, of the CPP, establishes that when a second-instance decision unfavorable to the defendant is not unanimous, "embargos infringentes" and nullity appeals are admissible. The jurisprudence of the Supreme Federal Court (STF) and the Superior Court of Justice (STJ) consolidates this appeal as a fundamental guarantee, ensuring that the defendant can see the most beneficial thesis raised by the dissenting magistrate prevail.
In labor proceedings, the application occurs in a restricted manner, with appeals being admissible to the Individual Disputes Section (SDI) of the Superior Labor Court (TST), pursuant to Art. 894, II, of the CLT, when the Panel's decision diverges from another Panel or the SDI, or contradicts a TST precedent or a Binding Precedent of the STF.
Contemporary Relevance and Practical Impacts
The contemporary relevance of "embargos infringentes" lies in its function as a "quality filter" for judicial decisions. By forcing the collegiate body to debate the controversy again from the perspective of the dissenting vote, the system reduces the probability of teratological decisions or those lacking robust reasoning. In Criminal Law, the maintenance of this appeal is seen as a bulwark against arbitrariness, ensuring that the presumption of innocence and the interpretation most favorable to the defendant (in dubio pro reo) are duly weighed.
Legal and Jurisprudential References
- Code of Criminal Procedure (CPP): Article 609, sole paragraph.
- Consolidation of Labor Laws (CLT): Article 894, item II.
- 1988 Federal Constitution: Article 5, items LIV and LV (Due process of law and adversarial system).
- STF Jurisprudence: Precedents reaffirming the guarantee nature of "embargos infringentes" in criminal proceedings in the face of non-unanimous decisions (HC 126.292/SP).
- TST Jurisprudence: Precedent No. 353 of the TST, regulating appellate admissibility before the SDI.
- Law No. 13,105/2015 (CPC): Explanatory memorandum regarding the extinction of the "embargos infringentes" appeal in ordinary civil procedure and its replacement by the collegiate expansion technique (Art. 942).
