In legal literature, there is extensive debate about the legal status of Embargo Declarations, as they are used to penalize a failure in a court ruling.
The doctrine considers this as a form of challenging referred to as a “partial challenge.” Nevertheless, the Code of Civil Procedure regulates declarations of embargoes in Title II of the Resources.
The focus of the debate stems from your short-term objectives and their impacts.
Please see the information provided below.
Title: Idea and Distinctive Characteristics
As mentioned initially, the Declaration of Embargos serves as a procedural tool to address a missing detail.
Imagine that, in the judicial decision, the judge did not mention the value of interest and lives fit to one of the parties or forgot to count on the attenuators of the penalty. In this context, embargoes are the ideal tool of stagnation to repair such formal vices.
So, to make it clear, the declaration embargoes are not the appropriate means to reform or annul a decision, but only to (i) clarify the decision, eliminating obscurities or contradictions; (ii) integrate the decision, supplying it omissions; or (iii) correct material errors contained in the decision, as CPC points out.
The Code of Civil Procedure also clarifies that the embargoes will be opposite within 5 (five) days in a petition addressed to the judge, with indication of error, darkness, contradiction or omission, and do not subject themselves to preparation.
Similarly, the response period of the magistrate will also be 5 days.
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The Effects
One of the effects of the embargoes is to prevent the transit in which the decision was taken. This impact has two consequences.
- To reopen the possibility of any reappraisal of the decision.
- They interrupt the deadline for the interposition of other resources, which may be appropriate.
The Devolutive Effect
A peculiarity of the declaration embargoes is that the matter is returned to the same body which issued the decision, judgment or judgment under appeal. While in the case of other resources with the same effect, the feature is re-analysed by the higher organ.
The Interruptive Effect:
The interposition of Declaration Embargos interrupts the deadline for the interposition of other resources for all procedural subjects.
In other words, if any party wants to make an appeal, it will have to wait for the embargoes to be tried.
Remember that the interruption is different from the recursal suspension. The latter suspends the effects of the feature, while the interruption is a time-limit pause to interfere with other resources.
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Curiosity on the theme:
Not often in legal practice, embargoes are interposed on a specific omission and after sanctioned omissions, the lawyer finds another point that needs clarification.
Hence the question arises: could the lawyer bring new embargoes on another point of the decision? The answer is NO.
In view of this, it was very common that a new questioning of omission would submit in the form of extraordinary appeal to the Supreme Court. The Supreme, then, launched a sum to eliminate this opposition. Check out:
With this, the supreme only analyses extraordinary resources of points already mentioned in the declaratory embargoes.
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