A summons constitutes the formal procedural act by which the defendant, the executed party, or an interested party is notified of the existence of a lawsuit, granting them the opportunity to join the procedural relationship and exercise their right to an adversarial proceeding. It is an indispensable prerequisite for validity in Civil and Criminal Procedural Law, representing the immediate materialization of the principles of due process of law and full defense.
Concept and Legal Nature
In the Brazilian legal system, the summons is the act that perfects the triangular nature of the procedural relationship. Under the aegis of classical and contemporary doctrine, its legal nature is that of a subjective procedural prerequisite for validity, without which the process suffers from an incurable defect. A summons is not to be confused with a notification (intimação); while the latter aims to provide notice of procedural acts already performed or to be performed during the course of the case, the former has the specific purpose of summoning the passive subject to defend themselves.
Historical Origin and Evolution
Historically, the summons dates back to Roman Law, notably in the rite of legis actiones, where the presence of the parties before the magistrate was indispensable. It evolved from a model of solemn and physical calling to a technical structure aimed at ensuring the effectiveness of jurisdiction. In domestic law, the 2015 Code of Civil Procedure (CPC/15) consolidated a paradigm shift, prioritizing summons by electronic means (art. 246), reflecting the adaptation of the process to the digital age and the principles of celerity and reasonable duration of the process.
Legal Provision and Normative Structure
The fundamental statute governing the institute is the Code of Civil Procedure, which dedicates articles 238 to 259 to the subject. The 1988 Federal Constitution, in its art. 5, item LV, establishes the adversarial system and full defense as fundamental guarantees, of which the summons is the instrumental vehicle. In the criminal sphere, the Code of Criminal Procedure (CPP), in articles 351 to 369, establishes specific rites, maintaining the need for formalism to ensure individual liberty.
Practical Application and Jurisprudence
The jurisprudence of the Superior Courts has focused intensely on the validity of summons by electronic means. The Superior Court of Justice (STJ), through various precedents, has mitigated excessive rigor when it is demonstrated that the party had effective knowledge of the lawsuit. However, the understanding prevails that the absence of a valid summons generates absolute nullity, in accordance with STJ Súmula 410, which requires personal notification for the collection of fines in obligations to do. Recently, Law 14.195/2021 reinforced the preference for electronic summons, establishing it as mandatory for public and private companies, except for micro-enterprises and small businesses.
Related Principles and Doctrinal Divergences
The foundational principle is that of the instrumentality of forms. The majority doctrine, led by names such as Fredie Didier Jr. and Luiz Guilherme Marinoni, argues that if the act achieved its purpose without prejudice to the defense, the summons should be considered valid, even if tainted by a formal defect. Divergences arise regarding summons by public notice (art. 256, CPC), considered an exceptional measure (ultima ratio), under penalty of violating the effective adversarial system. The current discussion centers on summons via messaging applications (WhatsApp), the validity of which has been endorsed by the STJ provided that the authenticity and identification of the summoned party are guaranteed.
Contemporary Relevance
The contemporary summons is the intersection point between legal certainty and technology. The transition to the electronic process required Law to overcome the fetish for postal summons (AR), embracing summons via court portals and digital means. This movement aims to reduce procedural processing time and ensure that jurisdiction is delivered in a timely manner, without dispensing with the constitutional guarantees that protect the defendant against the restriction of defense.
Legal and Jurisprudential References
- Constitution of the Federative Republic of Brazil of 1988, art. 5, LV.
- Law No. 13.105, of March 16, 2015 (Code of Civil Procedure), arts. 238 to 259.
- Decree-Law No. 3.689, of October 3, 1941 (Code of Criminal Procedure), arts. 351 to 369.
- Law No. 14.195, of August 26, 2021 (Provides for the facilitation of opening companies and changes summons rules).
- Superior Court of Justice, Súmula 410: "The prior personal notification of the debtor constitutes a necessary condition for the collection of a fine for non-compliance with an obligation to do or not to do."
- Recent STJ precedents on summons via WhatsApp (e.g., HC 720.803/SP).
