Electronic Judicial Auctions as an Anti-Fraud Instrument
by Gianfrancesco GENOSO, Public Prosecutor of the
Municipality of São Paulo, attorney and Master of Law from the University of
São Paulo – USP and Rosane PEREIRA DOS SANTOS, attorney and
Master of Law (continuing) at the Pontificate Catholic University – PUC/SP, Brazil.
The electronic
auction was introduced in the Brazilian Judiciary Branch by Law No. 11,382/2006,
and is regulated by Law No. 13,105/2015, New Brazilian Civil Procedure
Code (Novo Código de Processo
Civil). The statute has the following purposes: (i)
to increase transparency and effectiveness of legal acts designed to satisfy
creditors, to the extent that the possibility of bidding and purchasing
auctioned goods has become a reality through the Internet for an unlimited
number of interested parties; (ii) and by extension, to contribute toward
settling judgment actions, serving as a useful instrument for reducing the
length of judgment actions, in accordance with the principle of reasonable
procedural times enshrined in article 5, LXXVIII, of the 1988 Brazilian
Federal Constitution, a provision inspired in the “6th Amendment to
the American Constitution – which ensures the right to a speedy trial” and
reinforced by the applicable jurisprudence of the international human rights
courts;[1]
(iii) to reduce the influence of groups that have traditionally manipulated
auctions organized within the Judiciary as a means to defraud the integrity of
procedures.
Ten (10) years
on from incorporation of the procedure in the Brazilian judicial system reveal
that the rules regulating the procedure require continual revision in order to
adapt them to new digital platforms and expand the number of beneficiaries,
increase the speed of proceedings, and, moreover, reduce the costs to parties
and the Judiciary, while serving to confirm, by extension, that the initial
objectives have been met, without significant distortion.
Executive
jurisdictional protection consists in jurisdictional acts adopted in cases of
rights violations.
“[...] we can infer that executive
jurisdictional protection: (a) is undertaken for purposes of restoring rights,
as well as preventing the occurrence of violations; (b) encompasses not only
the results of the required execution (= material realization of the claimant’s
rights), but the means for ensuring the desired outcome”[2].
In the case of
direct judgment execution for fixed amounts, in which the debtor responds
through asset enforcement actions, the realization of such rights occurs
through expropriation. That is, following application of a lien, the forced
transfer of assets may be realized through one of the manners provided for
under the system, the most common of which are judicial transfer of attached
assets to the judgment creditor [adjudication]; transfer by private initiative
or transfer by public auction. In the words of Araken
de Assis,
“through forced transfers, the execution method
employed in the enforcement of monetary obligations, the only rationally
specific approach given the convertibility of the object of the transfer, the
attached asset is offered to the public, specifically the highest bidder, for
purposes of obtaining cash consideration and with the proceeds of the attached
assets,” satisfy the creditor[3].
The use of
electronic means to secure enforcement, through the expropriation of debtor
assets within the Judiciary was introduced through Law No. 11,382/2006. At
the time, the 1973 Brazilian Civil Procedure Code (Código
de Processo Civil de 1973 – CPC/73) was in force. The
Law’s explanatory statement[4]
reveals that the effectiveness, transparency, and use of new means to satisfy
legal claims have been objectives of legal practitioners for some time, as
reflected in the words of Barbosa Moreira:
“The work conducted
by the sharpest souls led to refinements in procedural law techniques executed through
solid architectural design strategies of impressive majesty. […]. Yet, there is
a need for an effective application of the relevant tools to the model,
patiently tempered and polished by the ingenuity of scholars.”
In an effort to enhance procedural performance
in this area, which continues to be the Achilles heel of the process, that is,
executive enforcement procedures, rules were proposed within the Brazilian Institute
of Legal Procedure and the Ministry of Justice, which were the subject of
wide-ranging debate for almost two years. The objectives of the measure
included simplifying the procedures for public auctions, with the possibility of
using electronic platforms for this purpose.
As such,
article 689-A was incorporated in the Brazilian Civil Procedure Code (Código de Processo Civil). The
provision included the possibility of substituting the public auction model in
articles 686 - 689 of the Code with disposal through the World Wide Web on
virtual pages created by the Courts or affiliated entities, in accordance with
the applicable regulations of the Courts and the Federal Justice Council, in
accordance with the requirements of broad publicity, authenticity, and
security.
The slow and
archaic public auction procedure initiated through public notices (article 686
of the CPC/73) published in “customary locations” five (5) days in advance in
at least one major newspaper distributed locally and held in the lobby of the
respective Forum [and the auction itself in the venue where the assets were
housed or a location designated by the judge] was simplified by digital tools
that offered users, interested parties, and the general public greater
efficiency. However, it is important to highlight that the applicable
administrative regulations did not provide for the substitution of the legal
regime ensuring the right of defense and adversAlegreya proceedings, rooted in the
principle of due process, but merely simplification of the procedure by
“dematerializing” it, specifically through the insertion of a public notice on
the pertinent Web page and waiver of the provision requiring bidders or
proponents to be physically presence[5].
In addition to
optimizing the procedure and fulfilling a fundamental corollary of the
principle of human dignity, including the right to a speedy trial – aimed not
only at the executive branch, but the administration of justice based on the
State-Court linkage – the possibility of rendering the procedure more
accessible and transparent emerged as a tool to prevent the actions of
“judicial auction mafias” reported from time to time in the media[6].
The National
Justice Council (Conselho Nacional
de Justiça – CNJ), a body created through Constitutional
Amendment 45/2004 – mandating reform of the judicial branch, based primarily on
the principles of access to justice (recourse, reasonableness, and procedural
efficiency) – which is tasked with overseeing administrative and financial
activities in the judicial branch through the analysis and review of plans,
targets, and evaluation programs, tracked the effective implementation and
activation of these innovative provisions.
In addition to
the CNJ’s resolutions, an example of the actions and commitment to transparency
pervading the entire procedure is a 2009 administrative directive in which the Council
“ordered the termination of the partnerships between the National Institute of
Judicial Quality (Instituto Nacional
da Qualidade Judiciária –
INQJ)” with the Regional Court of Labor (Tribunal Regional do Trabalho – TRT) of the 15th Region and
recommended that all remaining courts end the respective partnership as well.
“In the CNJ’s view, the partnership enabled no-bid contracts for purposes of
“unlawfully” circumventing bidding requirements. At the time the Council also
questioned the legal eligibility of the INQJ to maintain the contract.” The
matter was taken to the Courts through Petition for Injunctive Relief 28,086
filed with the Brazilian Federal Supreme Court (Supremo
Tribunal Federal – STF). A final decision has not yet been handed down in the
case. According to the available information, the CNJ determined that the INQJ
was
“using its status as a Public Interest Civil
Society Organization (Organização da Sociedade Civil de Interesse Público – OSCIP) to sign partnerships with bodies of the
judicial branch for the delivery of specialized computer services developed by
its anonymous partner, S4B DIGITAL DESENVOLVIMENTO DE TECNOLOGIA MULTIMÍDIA LTDA”.
In fact, the partnerships “avoided the bidding
procedure that would have been required to have S4B contracted directly with
the Judiciary”. This conduct resulted in an illegal monopoly by INQJ over
auction procedures. For its part, the petitioner, INQJ, argued that execution
of the auction procedures was not an activity that required a prior bid
procedure, as it
“involved a service that is delivered directly
to creditors, albeit under the auspices of the Courts, by private entities.
Therefore, the assertion that a bid procedure was required for purposes of
contracting the LEJ tool by bodies of the judicial branch has no merit.”
In reviewing
the petition for relief, Minister Ricardo LEWANDOWSKI ruled that there was an
absence of imminent and irreparable damage (periculum in mora) sufficient to warrant emergency
relief, adding that suspension of the implementation of the judicial electronic
auction system did not provide grounds for granting the injunction, given that
the overarching public interest does not require, necessarily, continued
operation of the project, as, in the case at hand, the CNJ decided, based on
that same public interest, in favor of the need for a bid procedure, which
would not have the effect of interrupting ongoing judicial auctions, insofar as
these may be conducted by means other than electronic bidding procedures[7].
With respect to the merit of the petition for injunctive relief, the Minister
found that circumvention of the principles of the Public Administration had
been sufficiently established[8],
as the
“public
auctioneer, pursuant to article 706 (CPC/73), is merely nominated by the
judgment creditor, with the case judge exercising ultimate authority on the
final selection. In this light, the bid procedure requirement is not waived by
virtue of the execution of contracts by the Court for the use of electronic
tools in auction procedures,” by virtue of which the Minister struck down the
plan[9].
The decision
was appealed. A ruling has not yet been issued on the appeal.
Without
delving too far into the case in question, the matter reflects the afflictions
that beset the Brazilian Judiciary, namely the suspicions of fraud or adoption
of unorthodox procedures that linger over entities which execute agreements
with the Courts. It is this type of situation that needs to be prevented.
Following the
enactment of the New Civil Procedure Code (Novo Código
de Processo Civil – CPC/15), the rules regulating
electronic public auctions underwent, out of necessity, significant modification,
in order to ensure the procedure was more visible and realistic with respect to
its underlying objectives.
In general,
the new procedural rules require that disposal be carried out by (i) individual initiative or (ii) an electronic or in-person
judicial auction (article 879, I and II, CPC/15). Indeed, pursuant to the
provision in article 882 of the CPC/15 electronic procedures are now the
rule, to the extent in-person auction procedures will only be employed where
the electronic option is not possible.
Although
redundant, insofar as there would be no need for an infra-constitutional
provision to apply this right, article 882, paragraph 1, states that
judicial disposal by electronic means must fulfill the due process guarantees
of the parties and meet the requirements of full publicity, authenticity, and
security, in accordance with the rules prescribed in the laws governing digital
certification (article 882, paragraph 2).
Broad
dissemination of disposal procedures is among the tasks assigned to the public
auctioneer, who must give priority to dissemination of a public notice on the
World Wide Web (article, 887, paragraph 1).
The following
may not enter bids: (i) executors, trustees of heirs,
administrators, or liquidators, in respect of assets in their custody and under
their responsibility; (ii) lead public officials, with
regard to assets they are charged with administering and disposing; (iii) judges, members of the Public Prosecutor’s Office (Ministério Público) or the Public
Defender’s Office (Defensoria Pública),
clerks, heads of the judicial secretariat, and other Court employees and
assistants, in regard to assets and rights subject to disposal in the locality
to which they are assigned or to which their authority extends;
(iv) civil servants in general, with respect to assets and rights of the legal
entity for which they work or which exercises direct or indirect management
over them; (v) auctioneers and their representatives, in
respect of the assets they are responsible for selling, and
(vi) the attorneys of any of the parties (article 890, I - VI).
With respect
to excessively low price bids, “Contrary to the 1973 CPC, the 2015 CPC extends
the proscription on excessively low bid proposals to electronic auctions, as
there is no margin, with respect to these, for distinguishing between the dual
nature of auctions, the first and second, a typical feature of in-person bid
procedures and provided for in article 895, sub-section II”[10].
In conjunction
with the rules in the Code of Civil Procedure, the CNJ “initiated discussions
in December 2015 on the regulations required under the new CPC through the
establishment of a working group” that “concluded that there were five matters
demanding regulation by the CNJ,” among them electronic auctions. The result of
the studies – following public consultations on the pertinent issues held in
the period March and April 2016, which garnered 413 statements and
recommendations, as well as a public hearing convened in May 2016 with the
participation of 48 experts, judges, attorneys, professors, consultants, public
defenders, and representatives of professional associations[11] –
culminated in the publication of Resolution 236, dated July 13th,
2016. Specifically, through the participation of individuals directly involved
in the delivery of legal services (which itself confirms the quest for a more
participatory form of justice) rules were developed that took into account: (i) “operational efficiency, access to the justice system,
and social responsibility,” all “strategic objectives of the judicial branch”,
pursuant to CNJ Resolution, dated September 1st, 2014”; (ii)
“electronic judicial disposal is aimed at facilitating the participation of
bidders, reducing costs, and speeding up the execution process,” efforts that
reflect, in combination, the search for transparency through use of the World
Wide Web and digital tools, without neglecting the protections to which the
debtor is entitled, at all times and without question, namely a full defense
and the right to adversAlegreya proceedings.
The Resolution
clearly evokes the concern with giving digital resources priority over other
means. In sum, judicial auctions will be executed exclusively by certified
auctioneers (article 1), who, in turn, will only be certified after
demonstrating that they (a) have discharged the profession for at least three
years (article 2); (b) have or own property intended for storing or
conserving seized assets (article 2, paragraph 1, I); (c) operate
“computer systems capable of controlling seized assets, providing photographs
and specifications, which the Court can consult online, as well as equipment to
record or film public acts involving judicial sales of assets, or,
alternatively, that they maintain contracts with third parties having the
necessary equipment” (article 2, paragraph 1, II); (d) have the means
to ensure wide dissemination of the judicial disposal and infrastructure to
hold electronic judicial auctions,” adopting the best practices of the
information technology market (article 2, paragraph 1, III and IV).
With a view to ensuring transparency and probity, judicial auction procedures
must meet the requirement of full publicity – making sure the related
information is not restricted to small groups capable of unlawfully
manipulating the process – authenticity and security (article 1);
auctioneers and their respective representatives may not enter bids on assets
they are responsible for selling. Failure to comply with the rules above may
result in the decertification of auctioneers (article 4, sole paragraph),
who are also responsible for the storage, custody, and conservation of assets
in their capacity as judicial depositaries; full dissemination of notices for
public auctions in general; “creating and maintaining, on the World Wide Web,
electronic addresses and Web environments capable of ensuring the execution of
electronic judicial auctions” (article 5, XI), answering questions before,
during, and after transactions (article 14, paragraphs 2 and 3).
Drawings for public auctioneers may be done by electronic means, where the
judgment creditor does not select an auctioneer as per article 883 of the
Brazilian Civil Procedure Code, in accordance with the principle of
impersonality, technical capacity, and experience of the auctioneer (article 9
and paragraphs). In addition, to ensure broad participation registration of
parties interested in the electronic judicial auction is free of charge
(article 13). The costs for dissemination of the auction are borne by the
auctioneer, who is compensated through the specific percent commission
prescribed by law. Bids entered during the auction in the management system are
immediately disseminated online to ensure “real-time bidding”, to which end
“systems through which bids are entered by email or any other method involving
human collection and entry of proposals” are not permitted (article 22 and
sole paragraph). The case judge may order tracking of the IP number of the
machines used by the bidder (article 27) and the entire procedure – which
must be remain available for immediate access by the Court – “must be recorded
in electronic and multimedia files with sufficient audio, data, and image
storage capacity” (article 34).
Therefore, the rules are
invariably aimed at ensuring real access to information relating to public
auctions and the responsible conduct of auction procedures, with a view to
guaranteeing the effectiveness and efficiency of the corresponding acts.
Experience
reveals, as only it could, that digital means and their evolution have become
important tools for democratic societies and, specifically, with regard to the
issue in question, serve to contribute to expanding the reach of a justice
system that is open, inclusive, participatory, and capable of effective
delivery humane legal services.
For some time
now it has been recognized that “from the postulate of access to justice and
due process of law, one can deduce the existence of a constitutional guarantee
to the executive jurisdictional protection”, since it is the fundamental right
of the creditor, without which the constitutional promise of adequate
protection of subjective rights would fall into the void[12]. But, more interesting than simply
recognizing civil enforcement as a fundamental right, it is necessary to verify
what the consequences of this recognition are. In this exercise it is verified
that the
“judge has
the power-duty to: (i) interpret the rules regarding
executive means in order to extract from them the greater protection of the
fundamental right to executive protection; (ii) no longer apply rules imposing
a restriction on this right that is not justified by the protection of another
right that should prevail in the specific case and (iii) adopt executive
techniques that are necessary even if not expressly provided by law”[13].
The search for
effectiveness in the result of the forced expropriation of assets in order to
meet the rights of the creditor cannot, however, give grounds for the violation
of the debtor’s rights, because as unacceptable as cruel justice “is
indifferent, alienated justice, because in both the magistrate disregards the
human person, failing to satisfy the innate objective right of the dignity of
the person”[14]. It cannot be forgotten, therefore,
that the debtor, like any other person, has the right to an adversary system
and full defense, resulting from the due process of law. Thus, the creditor’s
fundamental right to enforced execution can only be restricted for the protection
of another fundamental right, which in this case should prevail[15].
This is the
reason, for example, of the existence of rules, in the Brazilian order that
limit the expropriation power, that is, those that determine the impossibility
to levy execution of certain assets. It is important, however, to emphasize
that the rules of impossibility to levy execution must be applied in accordance
with the methodology of the application of the standards of fundamental rights,
and do not in certain specific cases result in
“disproportion/unnecessity/inadequacy
between the restriction to a fundamental right and the protection of another.
That is to say: it must be made clear that the court must make a constitutional
review of the application of the rules of impossibility to levy execution, if
its application proves to be unconstitutional, because it is unreasonable or
disproportionate, it must remove it, being a solution for the specific case”[16].
In this respect, the use of virtual tools for
expropriation acts must always be guided not only by positive prescriptions but
also by the very vector of the dignity of the human person, or to protect the
rights of creditors or debtors. And in this point, it is important to point out
that in the New Civil Procedure Code, Article 8[17] provides that the judge, in the
application of the law, will attend to the social purposes to which it is
directed and to the demands of the common good, always observing the principles
of dignity of the human person, reasonableness, legality, impersonality,
morality, publicity and efficiency. And the mention of dignity of the human
person in the legal system is never redundant. In the case of the article in
question the use of the term “dignity of the human person” - a constitutional
principle that permeates all other principles and rules related to fundamental
rights - along with the verb “promote” starts to determine the requirement of a
more active behavior of the magistrate[18].
According to
Nelson Nery Junior, the effectiveness of the
constitutional guarantee of speed and reasonable duration of the process makes
it necessary for the Judiciary Branch to be equipped with a logistical
apparatus, as well as to invest in the “technical training of judges and the
material elements necessary for the good performance of the functions of
magistrates and auxiliaries of justice”, but the changes that guarantee real
effectiveness of the fundamental right inscribed in art. 5, LXXVIII of the Federal
Constitution/88, do not depend only on the change of mentality of the Judiciary
Branch, but mainly “on the Executive and Legislative Branches and the change of
mentality of the rulers and politicians, in the sense of complying with and
enforcing the Constitution, avoiding the judicialization
of the issues that private individuals must submit to the Judiciary Branch
because of failure of the public power” in the exercise of its functions[19].
For these
reasons, it should be noted that, in addition to the monitoring of
technological changes and developments, which will ultimately create safer and
more efficient means for electronic procedures, the legislator and operators
must also make a constant exercise of the review of standards by observing
their results.
In this area,
the National Justice Council is vitally important because, through programs
that foster transparency in the administration of justice and public access to
its results, jurisdictions will certainly be able to democratically exercise
their constitutional guarantees, including receiving from public agencies
information of private, collective or general interest[20].
It should be
noted, for example, the possibility of extending the scope of CNJ Resolution
no. 102 of December, 2009 - which establishes that courts and councils publish
on their websites “relevant information on their financial and budgetary
management related to expenditures on human resources, general services such as
cleaning and IT, consumables, asset purchase and other costing expenses”[21], all in order to give greater
transparency to the management of the Judiciary Branch, which ultimately
enables social control - and initiatives such as the Transparency Portal –
created from the provisions of Supplementary Law 131/2009 that has as its
objective the real-time disclosure of budget and financial execution by the
public sector – to cover the demonstration, through indicators, of the results
achieved through the use of the electronic auction procedure.
However, the
CNJ’s own performance needs to be carefully weighed so that no excess is made,
as Ana Amelia Menna Barreto
warns in an article about the new CPC (Civil Procedure Code), the electronic
process and the digital media, the delegation of powers to the CNJ and,
supplementary, to the courts generates legal uncertainty, since in Brazil we
have about 40 differents computerized systems adopted
by the 27 (twenty-seven) Courts of Justice, 5 (five) Federal Regional Courts,
Superior Court of Justice and Supreme Federal Court, as, so far, only the Labor
Court has adopted a single system. The same author questions this delegation,
since in many respects it could enter into strictly procedural matters[22], which could ultimately lead to
questioning about the constitutionality of the edited rules since, according to
the Federal Constitution, it is the exclusive responsibility of the Union to
legislate on procedural law, pursuant to art. 22.
But not only
the rules that govern the electronic auction in the Civil Procedure Code could
be more comprehensive and specific. Also, other alternatives, which could even
use the electronic means for its effectiveness, could be considered. As Heitor Vitor Mendonça
Sica points out, our legal system already provides
for some techniques to facilitate access to executive acts in executions
carried out unilaterally by the creditor in hypotheses such as the
extrajudicial auction of goods specified in unpaid warrant upon maturity
(Article 23 § 1 of Decree1,1102/1903); extrajudicial sales, by the
pledge creditor, of the good pledged (article 1,433 of the Civil Code);
extrajudicial auction of a share of land and a corresponding part built in the
incorporation by the administration regime, also called “at cost” (article 63
of Law 4,864/1965) and later extended to the detached assets (article 31-F,
§ 14, of Law 4,591/1964, included by Law 10,931/2004); sale, on
the stock exchange, of shares of the remission shareholder (article 107,
II, of Law 6,404/1976); sale of the object of fiduciary property in the
financial and capital market (article 66-B, § 3, of Law 4,728/1965,
included by Law 10,931/2004); execution of credits with real estate
guarantee, pursuant to Decree-Law 70/1966 and Law 9,514/1997. The author
suggests that, for the effectiveness of civil enforcement, it would be necessary
to think more slowly and carefully about the extension of easier access to
justice in other situations, for example in some countries such as Portugal and
Spain that recently changed their law system in order to facilitate access to
at least part of the extrajudicial acts so as to assign to extrajudicial
agencies the tasks inherent to location, constriction, evaluation and
expropriation of assets[23]. After analyzing the Portuguese model
of easier access to justice, Joel Dias Figueira
Junior concludes that
“the real
success that can be achieved with this practice, above all, through the prism
of simplification, economy, speed, effectiveness and satisfaction, is
innumerable and feasible, since there will be direct repercussions for the
consumers of justice and in the state judicial sphere, as regards the release
of time (...)”[24].
It is concluded, therefore, that: (i) the use of the electronic form to carry out the auctions
that aim at the forced fulfillment of the execution has been prioritized and
refined over the years, since it is a means, potentially more effective, speedy
and compatible not only with the technological advances available, but also
with the need for transparency and open, accessible justice, everything aiming
ultimately at the realization of the dignity of the human person; (ii) however,
the advantages inherent to the use of the electronic auction mechanism
presented so far are intuitive, since there is no tool that allows the
comparison of data to determine if the electronic auction is more effective or
transparent than face-to-face auctions (iii) in such a case, the regulation of
the matter in question, to date, is not sufficient to achieve these objectives,
and there is a need for the refinement of the instruments, both to accompany technological
innovations and the development of new digital platforms, and so that the
Power, whether in the judicial, administrative or executive function, adapts to
these innovations, either by adopting positive actions or by abandoning certain
practices that make the process time-consuming and expensive.
[1] S. M. Arruda, Comentário ao art. 5º, LXXVIII In J.J.G. Canotilho,
G. F. Mendes, I.W. Sarlet,
L. Streck, (Coords.), Comentários à Constituição do Brasil. São
Paulo: Saraiva/Almedina, 2013, pp.
507-512.
[2] J. M. G. Medina, Execução.
São Paulo: editora Revista dos Tribunais, 2008, (Processo Civil Moderno), p.
25.
[3] ASSIS, Araken de. Manual da
execução – 13. ed., rev. ampl. e atual. São
Paulo: Editora Revista dos Tribunais, 2010. p. 813.
[4] Available at [http://www2.camara.leg.br/legin/fed/lei/2006/lei-11382-6-dezembro-2006-547572-exposicaodemotivos-150234-pl.html], acesso em
16.11.2016.
[5] A. Alvim, ASSIS, Araken de, E. A. Alvim , Comentários ao Código de processo civil – 1. Ed. – Rio de Janeiro: GZ Ed., 2012.
p. 1.121.
[6] In criminal action
0001941-28.2012.04.03.6116, a lawyer was convicted for associating with his
clients to defraud court settlements. In the case in point, a legal entity had
been set up to take out the assets belonging to the debtor that were auctioned
by determination of the Federal Court to pay debts of the company. The assets
were mostly sold at lower prices than the valuation, that is, the debtor
himself, through an interposed person, repurchased the assets for less than the
market value instead of redeeming the execution (pay or consign the full amount
of the debt, plus interest, costs and fees to prevent the property from being
expropriated).
Another
type of fraudulent scheme, investigated by the Public Prosecutor's Office,
consisted of people who intimidated competitors or even paid fees so they would
give up bidding. (Available at https://noticias.terra.com.br/brasil/policia/pf-prende-16-em-operacao-contra-fraudes-a-leiloes-em-sergipe,b25c4fc7b94fa310VgnCLD200000bb
cceb0aRCRD.html).
With the advent of the auction held totally virtually, in theory, the conducts described in the examples above become difficult, since the generality of users registered to participate in the auction and the value of the bids offered can hardly be controlled by such criminal associations.
[7] Available at [http://www.cnj.jus.br/noticias/67340-stf-nega-liminar-a-instituto-que-pretendia-suspender-decisao-do-cnj-], acesso em 14.11.2016.
[8] Article 37 of the Brazilian
Federal Constitution mandates that “the direct and indirect public
administration of any Branch of the Federal, State, Federal Strict, or
Municipal Governments shall meet the principles of legality, impersonality,
morality, publicity, and efficiency”.
[9] Available at: http://www.stf.jus.br/portal/jurisprudencia/listarJurisprudencia.asp?s1=%28MS%24%2ESCLA%2E+E+28086%2ENUME%2E%29+NAO+S%2EPRES%2E&base=baseMonocraticas&url=http://tinyurl.com/awo6jez.
[10] C. S. Bueno, Manual de direito processual civil: inteiramente estudado à luz do novo
CPC –Lei 13.105, de 16.03.2015. São Paulo: Saraiva, 2015. p. 516.
[11] Available at: http://www.cnj.jus.br/noticias/cnj/82841-conselho-regulamenta-alienacao-judicial-eletronica-conforme-novo-cpc.
[12] T.
F. Siqueira, A responsabilidade patrimonial
no novo sistema processual civil, Coleção Liebman.
São Paulo: Revista dos Tribunais, 2016. p. 126.
[13] Ibidem, p. 127.
[14] W. Balera, R. Sayeg, Capitalismo humanista, Petrópolis: KBR, 2011. p.129.
[15] T. F. Siqueira , A responsabilidade patrimonial no novo sistema processual civil Coleção
Liebman. São Paulo: Revista dos Tribunais, 2016.p.
145.
[16] A. do Passo. Cabral, R. Cramer, (Coord), Comentários ao novo Código de processo civil. Rio de Janeiro: Forense, pp. 24-33.
[17] Art. 8 “In applying the legal
system, the judge shall attend to social purposes and to the requirements of
the common good, safeguarding and promoting the dignity of the human person and
observing proportionality, reasonableness, legality, publicity and efficiency”.
[18] A. do Passo. Cabral, R. Cramer, (Coord), Comentários
ao novo Código de processo civil, Rio de Janeiro: Forense, pp. 24-33.
[19] N.
Jr. Nery, Princípios do processo na
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