Comments on the Pandemic Law: impacts on Family and Succession Law
On June 10, Law 14,010 of 2020, called the "PandemicLaw" or the "Emergency and Transitional Legal RegimeLaw" ( RJET Law) came into force, which aims to regulate private law legal relations during the period of the coronavirus pandemic (Covid-19).
The legislation established as the initial term of the events derived from the pandemic the date of 20/03/2020, which is the date of Legislative Decree no.06, which recognized the occurrence of the state of public calamity to authorize budget flexibilities due to the pandemic.
This does not mean that events occurring prior to the aforementioned date cannot give rise to contractual revisions or the application of other private law institutes, especially since the pandemic was already present before that date, so much so that on February 3rd , the Ministry of Health declared a public health emergency, through Administrative Rule no. 188. However, the analysis of each specific case will be made based on the general norms and principles of Civil Law and not on the RJET norms.
It is worth highlighting the fact that the aforementioned Law does not revoke or amend provisions of the Civil Code and extravagant laws, but only suspends its application insofar as it is incompatible with them, in view of its temporary nature in which it aims to create transitory rules, given the emergency nature of the crisis.
The new law brought impacts in the scope of the Civil Law, with regard to the statute of limitations and limitation periods, considering them suspended or impeded for the period of the law; to the general meeting of legal entities of private law, in which it allows associative acts to be performed by remote means; consumer relations, having suspended the right of withdrawal in contracts entered into at a distance in the case of delivery of perishable goods and medication; usucaption, the deadlines for acquisition of ownership being suspended for the period considered; condominiums, having allowed the meeting to be held by virtual means; the competition system and family and succession law.
With regard to Family Law, the new law brought repercussions on civil imprisonment for alimony debt and on the time limit for the process of inventory and partition of property.
The imprisonment of the food debtor is the only form of civil imprisonment allowed in the Brazilian legal system (art. 5, LXVII, CF). It is noted that, if the executed, summoned to pay the alimony debt, does not do it or presents justification not accepted by the judge, it will be decreed the imprisonment for a period of 01 (one) to 03 (three) months, to be served in closed regime (art.528, § 1 and § 3, CPC).
However, the new law determines that until 30 October 2020, that is, while the emergency legal regime is in force, the prison will be served exclusively at home, due to the danger of contagion of the disease, respecting the dignity of the human person, in compliance with Recommendation 62 of the CNJ.
The 3rd Panel of the STJ did not adopt this understanding, evidencing the conflict between the right to health of the alimonious and the right of the alimonious, more vulnerable party, to have his food sum assured. Although the law in question was not yet in force, there was already the Recommendation of the CNJ in the sense of the civil imprisonment of the alimonious to be fulfilled in domiciliary regimen. Even so, the Superior Court considered more prudent to determine the suspension of civil prisons during the pandemic, having decided for the fulfillment of the prison in closed regime after the period of the pandemic, that is, it opted for the provisional deferment of the execution of the civil obligation.
Minister Villas Bôas Cuevan emphasized that "it is not plausible to replace imprisonment by social confinement, which, incidentally, is already the reality of most of the population," so that the home detention would not comply with the legal mandate and would hurt, by the way, the very dignity of the person being fed.
The precautionary custody is justified by the imminent danger of contagion of the disease in prisons, however, this measure may not be satisfactory, causing the inertia of the debtor of food, to the detriment of the feeder.
With regard to Succession Law, the Law extended the deadline for opening the succession (which used to be two months as of the date of death), which now begins on October 30, 2020, for deaths occurring as of February 1, 2020. Moreover, the law establishes that the 12-month period to complete the inventory will be suspended until October 30, 2020, if started before February 10 of the same year.
Such a provision is understandable, given the difficulty of collecting data and documents in the isolation context. However, this provision may conflict with state laws that establish penalties for non-compliance with the legal deadline, and there is still no harmonisation in this regard.
It is noted, thus, that the Pandemic Law, despite addressing some controversial issues, aims to mitigate the effects of the coronavirus to preserve legal relations and protect the most vulnerable.
Sílvia Costa Arujo
Post-graduate student in Civil Procedural Law at the Faculdade CEDIN
References:
GAGLIANO, Pablo Stolze; OLIVEIRA, Carlos Eduardo Elias de. Comentários à Lei da Pandemia (Lei 14.010/2020). Disponível em: <https://flaviotartuce.jusbrasil.com.br/artigos/859582362/comentarios-a-lei-da-pandemia-lei-14010-2020?utm_campaign=newsletter-daily_20200615_10201&utm_medium=email&utm_source=newsletter>.
HC 574.495/SP, Reporting Justice RICARDO VILLAS BÔAS CUEVA, THIRD COLLECTION, judged on 26/05/2020, DJe 01/06/2020.
SANTOS, Laísa. Os impactos da Lei da Pandemia (Lei nº 14.010) no âmbito do Direito das Famílias e Sucessões. Disponível em: <https://schiefleradvocacia.jusbrasil.com.br/artigos/859665328/os-impactos-da-lei-da-pandemia-lei-n-14010-no-ambito-do-direito-das-familias-e-sucessoes?utm_campaign=newsletter-daily_20200615_10201&utm_medium=email&utm_source=newsletter> .
Tag:CNJ, Commentary, Superior Court, Succession Law, Family, Law, Pandemic, Regime, STJ, Transitory