ADC 71 Seeks To Prevent STJ From Establishing Fee Case, Says Nancy

For Minister Nancy Andrighi, the presentation of the Declaratory action of constitutionality 71 carried out by the OAB before the Federal Supreme Court, in April 2020, is an attempt to prevent the Superior Court of Justice from giving the last word in the interpretation of the federal law on succumbing fees in cases involving the Public Treasury.

The statement was made in a judgment of the Special Court of the STJ on Wednesday (11/18), on appeal on the same issue. When giving the casting vote, the minister pointed out that the presentation of the ADC 71 It does not influence in any way the outcome of the matter in a special appeal, since the Supreme Court did not grant a court order or determine the overestimation of related processes. The case was recently redistributed to Minister Nunes Marques, of the STF.

In ADC 71, the OAB alleges that the Judiciary is prohibited from applying article 85 of the Code of Civil Procedure outside of the hypotheses literally established. Ultimately, you want to avoid the fair setting of fees when the cause has an exaggeratedly high value, since the rule only promotes it when the value is very low or insignificant. At Special feature 1,644,077, the STJ discusses the same issue.

“The filing of that lawsuit reveals an attempt to prevent the uniformed court of federal law from exercising its function of interpreting and giving the last word on the interpretation of federal legislation, as in the constitutional configuration outlined in 1988 by the Federal Supreme Court was the censor of the Superior Court of Justice, ”said Minister Nancy.

This Wednesday, the vote-view presented pointed to the possibility of setting succumbence rates by the equitable method instead of the previous percentage price when the value of the case is disproportionately high in relation to the service provided. It is precisely the position with which the OAB disagrees, in the petition to the Supreme Court, for seeing it applied in various Brazilian courts.

Case concrete

The case at trial in the Special Court refers to the tax enforcement filed against the partners of a company in the amount of R $ 1.6 million in 1997. In a three-page petition, the lawyer of one of the partners filed a exception prior to execution in which he claimed recognition of passive illegitimacy.

The partner was excluded from the passive pole of the execution. Subsequent appeals dealt with all the succumbing fees. The updated value of the case is around R $ 4.6 million, so the lawyer would receive around R $ 300 thousand, if there is no equitable settlement, not provided for in the CPC 2015.

“Given this scenario, the only question to answer is: will there be adequate remuneration for the winning employer, corresponding to the work actually carried out in the case, if the sum of the sum is set at an amount greater than R $ 300 thousand? , the answer can only be negative ”, understood Minister Nancy Andrighi.

The trial was interrupted at the request of Minister Og Fernandes. The rapporteur is Minister Herman Benjamin, who has not yet read the vote (as Minister Nancy had asked for a preview), but he took a position in the same direction as Minister Nancy, since he was accompanied by her, but with added grounds.

Theory of rule derogation

To point out that this fair assessment also applies to extremely exceptional situations of aberrantly high earnings relative to work performed, Minister Nancy applied the rule-derogation theory. It is based on the fact that the human inability to predict all possible situations, which allows to overcome the rule in specific cases.

Thus, if the purpose of disciplining the fees by the CPC is to adequately remunerate the winner’s lawyer by virtue of the work, it is correct to say that the literal application of article 85 will be inappropriate and incompatible with that purpose when it leads to inadequate remuneration.

“Unlike what is usually proposed by the class of lawyers, inadequate remuneration is not only synonymous with degradation of fees, paying them at a level below that corresponding to the position, but it is also synonymous with exorbitant fees, paying it at a higher level. superior to the corresponding to the work that developed ”, he said.

“As obvious as it may seem,” added the minister, “it is necessary to reaffirm that justice and isonomy not only serve the increase in the case of minuscule rates, and not the minority in the case of exorbitant rates, as if there were one-way equity “.

The vote also highlights that, in the absolute majority of times, there will be no exception to the general rules defined by the CPC. However, it is still not correct to definitively exclude fair assessment when there are obvious distortions in the pay-work binomial. “This point of view is more concerned with the interests of a class than with the scope of jurisdiction and society,” he concluded.

REsp 1.644.077