Main considerations on the new law No 21.394, regarding the amendments to the Civil Procedure Code: presentation, analysis of its contents and opinions on the matter.
Víctor Riadi I.
The pandemic generated by the Covid-19 (Coronavirus) has put the justice system of our country to the test in different areas, forcing our procedural legislation to be updated and adapted to the different scenarios that have arisen as a result of its consequences, both with respect to travel restrictions, as well as impediments to social proximity, among others.
With the purpose of overcoming the catastrophic consequences that this virus has generated, the State has taken several measures to make our justice administration system more efficient and, thus, improve the tools that the law grants in the procedural area for more expeditious processing of the process, which allows guaranteeing the parties the due protection and exercise of their rights in a more efficient way; of these measures being the implementation of the new law 21.394 that introduces significant amendments to the Code of Civil Procedure and others bodies of procedural and organic nature.
Amendments introduced by Law 21.394 to the Code of Civil Procedure
As a result of the pandemic affecting our country, on 30 November 2021, Law 21.394 has been published providing certain facilities in the judicial area regarding different issues. In the sense of improving the way which the process is substantiated, and thus making its processing as efficient as possible, but always safeguarding the rights of the parties and their respective procedural guarantees.
Regarding the above, the aforementioned law begins with amendments to the Code of Civil Procedure (“CPC”) in tis Article 3º, establishing in its number 1) the creation of a new Article 3º bis, which states that “It is the duty of lawyers, justice administration officials and judges, to promote the use of self-compositive methods of conflict resolution, such as conciliation, mediation, among other. These methods may not restrict, substitute or impede the guarantee of jurisdictional protection”.
Thus, the purpose of this new insertion is to encourage the parties and the court to adopt measures aimed at reaching an amicable solution between them to avoid, as far as possible, entering into a litigious process that could last for years, costing considerable resources to both the parties and the court.
Another amendment of law 21.394, in number 3) of its Article 3º, is the amendment it makes to Article 44 of the CPC, by establishing that the parties will not have to wait for the two positive searches made by the judicial receiver to notify of the lawsuit in subsidiary personal form, but that in the same second search the judicial receiver may notify the defendant by writ of summons, without further formality; leaving a record of it in the court.
This amendment is undoubtedly one of the most notable at a practical level, since previously two positive searches of the defendant´s domicile had to be carried out, and then permission was requested from the court to notify the claim as established in Article 44 CPC, and then the judicial receiver had to go a third time to carry out the respective notification. Whit this, an unnecessary bureaucracy is eliminated from our administration of justice, which assists the process and makes it much faster and more efficient.
A third interesting modification inserted by Law 21.394 is the one made to article 48 CPC, in the sense that all types of resolutions established in said provision, such as the resolution which orders the personal appearance of the parties, or even the final judgment itself, may be notified to the parties by the court though electronic mail.
The foregoing is strictly related to the provisions of number 5) and 11) of Article 3º of the referred law 21.394, which amends Articles 49 and 254 CPC, establishing as an obligation that each party, in its first presentation before the court, must indicate a means of electronic notifications as a requirement of validity for such presentation in court.
Thus, and as a result of the last two modifications described above, we find ourselves with a tremendous advance in the area of procedural celerity, since, although the field of management of the deadlines by the parties will be reduced, this will allow the court to better coordinate its availability and workload, in order to be able to terminate the proceedings in a much faster way, without considering the savings that will mean for the parties not having to incur in notification expenses or of similar significance.
Another of the amendments included in Law 21.394, which has been a very beneficial solution in terms of appearance, is the new Article 77 bis of the CPC, which enables the parties to appear remotely at hearings or judicial instances that require their physical presence.
This is an extremely relevant advanced, since, with technological means, it is possible to insert in our civil procedural system a much more efficient form of attendance to the summons issued by the courts of the Republic, regardless of their jurisdictional territory, thus avoiding incurring in travel and lodging expenses only for the fact of having to attend in person to a respective hearing.
The same situation occurs with the modification indicated in number 10) of Article 3º of Law 21.394, in that a new Article 223 bis is added to the CPCP, which, in the same line as the new Article 77 bis just described, allows the appearance via telematic to the pleadings that must be made before the various Courts of Appeals of the country, regardless of their seat or jurisdictional territory.
Finally, a last amendment that I would like to highlight in this opportunity is the one established in numbers 12) and 18) of Article 3º of Law 21.394, where the expression “commune where the court has its seat” is eliminated from Articles 258 and 459 of the CPC, and its “jurisdictional territory” is established as a generic term for the purposes of calculating the term that would be used to answer the claim in ordinary proceedings, and the executive claim in a proceeding of such nature.
Prior one had to distinguish whether the notification of the claim was being made within the commune where the court had its seat, or if it was being outside the commune of its seat, but within its jurisdictional territory. Thus, in the case of the first scenario, the term to answer the claim was fifteen days in the case of ordinary proceedings (of greater amount) and four days in executive trials. Now, if the lawsuit was served outside the commune where the court was located, but within its jurisdictional territory, the term to answer the ordinary lawsuit became eighteen days, and in executive lawsuits it became eight days.
As a consequence, and with the elimination of the concept of ““commune where the court has its seat”, the terms for answering the claim are unified to a single concept, which is its jurisdictional territory, the term to answer the claims in ordinary lawsuits of greater amount days being therefore eighteen, and eight days to answer the executive claims in executive lawsuits. All above, without prejudice of the notifications that are made outside the jurisdictional territory of the court or outside the territory of the Republic, for which the respective summons table will be applied.
Throughout this article we conclude that, although Covid-19 has been a disease that has produced catastrophic consequences for our country and the whole world, it is still true that it has put out judicial system to the test, and it has been able to overcome the difficult scenarios that the pandemic has produced, not only by adapting to the new technological reality in which we live, but also by taking advantage of it to optimize the way our judicial system works, incorporating various procedural tools which undoubtedly constitute an enormous advance in terms of efficiency and procedural economy.
At EDN Abogados we are constantly studying the advances that the law makes in judicial and procedural matters in order to be prepared in the best possible way to protect the actions and the judicial guarantees of our clients.