3.8 Enforcement of judgments
There is no specific provision in the LPI regarding the enforcement of judgment of cases involving patents. However, as we will see, appeals filed against decisions rendered by judges that remit the analysis of the matter to the court have an effect of supersedeas: they suspend the effects of the decision, which can only produce effects when no further appeal is possible.
Provisional compliance with a decision is regulated by Articles 513–522 of the CPC, whereas final compliance with a decision, only occurring after the final and unappealable decision, is regulated by Articles 523–538 of the CPC.
3.8.1 Provisional compliance with the decision
It is possible for a judge to determine a provisional decision due to an urgent situation, either during the case or in the judgment itself (Articles 300–302 of the CPC). In this case, the part of the decision that grants this provisional decision or confirms its effects continues to produce effects, though provisionally.
A judgment debtor is notified to comply with the decision through the Court Register (Diário da Justiça) by the attorney appointed in the case record; by letter with an acknowledgment of receipt, when represented by the Public Defender’s Office or when there is no attorney appointed in the case record; or by notice, when, having been served process by notice, the judgment debtor was in default during the cognizance phase (Article 513(2) of the CPC).
If the request for compliance with the decision is filed one year after the decision has become final and unappealable, notification is served to the debtor by means of a letter with an acknowledgment of receipt, sent to the address stated in the case record (Article 513(4) of the CPC). Compliance with the decision is carried out before the lower court.
Article 515 of the CPC lists the instruments that are enforceable in court, including decisions rendered in civil proceedings that recognize the enforceability of an obligation to pay a sum of money, to do something, not to do something or to deliver something (Article 515(I) of the CPC).
A final and unappealable decision may be protested after the term for voluntary payment (Article 517 of the CPC). Provisions regarding compliance with the decision, either provisional or final compliance, and the settlement, as applicable, apply to decisions that grant interlocutory relief (Article 519 of the CPC).
Provisional compliance with the decision objected to by an appeal that does not have the effect of supersedeas is performed in the same way as the final compliance, having the following particularities:
I – it is incumbent upon the judgment creditor, who undertakes, if the decision is changed, to repair the damage that the judgment debtor has suffered;
II – it becomes ineffective upon the occurrence of a decision that modifies or annuls the decision subject matter of the execution, the parties being restored to the previous status and any losses being settled in the same case record;
III – if the decision subject matter of the provisional compliance is modified or annulled only in part, the execution will be ineffective only regarding this part; [and]
IV – the withdrawal of a cash deposit and the performance of acts involving the transfer of possession or disposal of property or other real property rights, or which may result in serious damage to the judgment debtor, are subject to sufficient and suitable bond, to be arbitrated in advance by the judge and posted in the case record itself. (Article 520 of the CPC)
The bond referred to in Article 520(IV) of the CPC may be waived:
I – if the credit is of a support nature, regardless of its origin;
II – if the creditor demonstrates need;
III – if an interlocutory appeal under Article 1,042 [of the CPC] is pending;
IV – the decision to be provisionally enforced is in line with a precedent of the case law of the Federal Supreme Court or the Superior Court of Justice or in accordance with an appellate decision rendered in the judgment of repeated cases.
Sole Paragraph. The requirement for bond shall be maintained when the dismissal may result in a manifest risk of serious damage of difficult or uncertain redress. (Article 521 of the CPC)
Regarding provisional compliance with a decision, the judgment debtor may file an objection, if they so desire, as in the final compliance with the decision, a fine and the fees provided for in the final compliance with the decision being also due for the payment of a certain amount. The provisions mentioned above apply to the provisional compliance with a decision that recognizes the obligation to do, not to do or to give something, as applicable.
Where the judgment debtor appears on time and deposits the amount to be exempted from the fine, this act is not deemed incompatible with their filing of an appeal (Article 520(3) of the CPC).
3.8.2 Final compliance with the decision
The final compliance with a decision is regulated by Articles 523–538 of the CPC. For a decision of a certain amount or of an amount that has already been defined in the settlement, and for a decision on an undisputed part, the final compliance with the decision is made upon request by the judgment creditor, the judgment debtor being notified to pay the debt within 15 days, plus costs, if any (Article 523 of the CPC).
If the voluntary payment is not made within the term established by law, including costs, the debt is increased by a 10 percent fine and, additionally, a 10 percent attorney’s fee (Article 523(1) of the CPC). If the payment is partial, the fine and fees are only levied on the remainder (Article 523(2) of the CPC). Additionally, if the voluntary payment is not made in time, a writ of execution and assessment will be issued, followed by expropriation proceedings (Article 523(3) of the CPC), after which a term of 15 days begins for the judgment debtor to file an objection in the case record, regardless of the levy of execution or new notification (Article 525 of the CPC). In this objection, the judgment debtor may claim the:
I – lack of or nullity in the service of process if, in the cognizance phase, the case was processed in default;
II – lack of standing of a party;
III – unenforceability of the instrument or unenforceability of the obligation;
IV – incorrect levy of execution or erroneous assessment;
V – excess in the execution or undue accumulation of executions, in which case they should indicate the amount they understand to be correct, under penalty of having their objection immediately rejected;
VI – absolute or relative lack of jurisdiction of the enforcement court; [or]
VII – any modifying or extinguishing cause of the obligation, such as payment, novation, offsetting, transaction, or limitation, as long as after the decision (Article 525(1) of the CPC).
The presentation of an objection does not prevent the practice of execution acts, including expropriation acts, and the judge may, at the judgment debtor’s request and provided that the court is secured by a sufficient levy of execution, bond or deposit, grant a stay of execution if the grounds thereof are relevant and if the execution proceedings are manifestly likely to cause the judgment debtor serious damage that would be difficult to redress or the repair of which would be uncertain (Article 525(6) of the CPC). When the effect of supersedeas granted to the objection concerns only part of the subject matter of the execution, the execution continues for the remaining part (Article 525(8) of the CPC).
The granting of effects of supersedeas to an objection filed by one of the judgment debtors does not suspend enforcement against those who did not make an objection if the respective grounds exclusively concern the objecting party (Article 525(9) of the CPC). Even if the effect of supersedeas is granted to the objection, it is lawful for the judgment creditor to request that the execution proceeds, by offering and posting, in the case record itself, a sufficient and suitable bond to be arbitrated by the judge (Article 525(10) of the CPC).
Issues relating to a fact occurring after the expiration of the term for filing an objection, as well as those relating to the validity and suitability of the levy of execution, assessment or subsequent enforcement acts, may be argued by a simple complaint. The judgment debtor, in either case, has 15 days – as of the proven knowledge of the fact or of the notification of the act – to make this argument (Article 525(11) of the CPC).
The defendant may, before being notified to comply with the decision, appear before the court and offer to pay the amount they consider due, submitting a detailed statement of the calculation (Article 526 of the CPC). However, the plaintiff may object the amount deposited, without prejudice to the withdrawal of the amount they consider undisputed (Article 526(1) of the CPC). If there is no such objection, the judge will declare the obligation satisfied and extinguish the case (Article 526(3) of the CPC).
In the enforcement of a decision that recognizes the enforceability of an obligation to do or not to do, the judge may, at their own initiative or upon request, and to enforce the specific injunction or obtain an injunction for an equivalent practical result, determine the necessary measures satisfactory to the judgment creditor (Article 536 of the CPC). To enforce the specific injunction of an obligation to do or not to do, the judge may order, among other measures, the imposition of a fine, search and seizure, removal of people and things, destruction of works and the prevention of harmful activities and, if necessary, request the assistance of the police (Article 536(1) of the CPC). The judgment debtor incurs bad faith litigation penalties if they unjustifiably fail to comply with the court order, without prejudice to being held liable for the crime of disobedience (Article 536(3) of the CPC).
Regarding the enforcement of decisions concerning the obligation to do or not to do something, the fine does not depend on the request of the party and may be applied in the cognizance phase, in the provisional injunction or in the decision, as well as in the enforcement phase, provided that it is sufficient and compatible with the obligation and that a reasonable term for compliance is established (Article 537 of the CPC). The amount of the fine is due to the judgment creditor (Article 537(2) of the CPC). Additionally, the judge may, at their own initiative or upon request, modify the amount or periodicity of the fine or exclude it if they find that it has become insufficient or excessive or that the debtor has demonstrated supervening partial compliance with the obligation or cause for noncompliance (Article 537(1) of the CPC).
The decision that sets the fine may be provisionally enforced, provided that the fine is deposited in court. It is possible to withdraw the amount after the final and unappealable decision in favor of the party (Article 537(3) of the CPC). The fine is due from the day the noncompliance with the decision is verified and is applied while the decision that imposed the fine is not complied with (Article 537(4) of the CPC).
In a case of noncompliance with the obligation to deliver something within the term established in the decision, a search warrant or warrant for vesting of possession will be issued in favor of the creditor, depending on whether the property is personal or a real estate property (Article 538 of the CPC).