Art. 63. Once the condemnatory sentence becomes final, the victim, his legal representative or his heirs may promote its execution, in the civil court, for the purpose of repairing the damage.
Single paragraph. Once the condemnatory sentence becomes final, the execution may be carried out for the amount fixed under the terms of item IV of the caput of article 387 of this Code without prejudice to the settlement for the determination of the damage actually suffered (Included by Law No. 11,719, of 2008).
Execution of the conviction and preliminary settlement
Executing the condemnatory sentence in civil: The final condemnatory sentence constitutes an enforceable title. With it, the offended party does not need to first propose a knowledge action to, only after, enter with compliance with the sentence. No. The convicting criminal sentence can be enforced (better said, carried out). It can be enforced in civil court. In compliance with judgment ( Article 513 of the CPC and following), the responsibility of the condemned/executed can no longer be the subject of discussion. What will be discussed is how much (what value) should be paid. Emerging damage may be charged (how much was spent on hospitalization, for example), loss of profit (how much the offended party/exective failed to receive because he stopped working while he was in convalescence), and moral damage (the psychic). If the judge, in the condemning criminal sentence, has established a minimum amount for repairing the damage caused by the infraction ( article 387, item IV of the CPP), this portion does not depend on prior settlement. Compliance with the judgment may be proposed by the offended party, their legal representative or their heirs. It should be noted that, if so preferred, the judgment creditor may choose to charge only the amount established in the conviction, which would not make much sense, as it would be the minimum owed by the offender.
Settlement prior to compliance with the sentence: The determination of amounts due in the civil court is done through settlement of the sentence. This procedure is regulated by the CPC in Articles 509 to 512. Once the value is quantified, it enters with the fulfillment of the judgment.
Basics of the obligation to repair damage: Not all offenses cause harm to someone specifically. When they provoke, there is an unlawful act that can be indemnified. Article 186 of the Civil Code provides that ” anyone who, by voluntary action or omission, negligence or imprudence, violates the law and causes harm to others, even if exclusively moral, commits an unlawful act” . Article 927 of that same statute states that anyone who, by unlawful act, causes damage to another, is obliged to repair it. The Penal Code, in turn, concerned with the compensation of the victim, invades private law and determines that the effect of the conviction is to “ make certain the obligation to indemnify the damage caused by the crime ” ( article 91, item I).
The condemnatory sentence as an enforceable title: The final condemnatory criminal sentence constitutes a judicially enforceable title, the execution of which must be carried out in accordance with the rules of the CPC that regulate compliance with the sentence; this is what article 515, item VI of the CPC provides . Enforcement of the judgment is carried out before the competent civil court, and the creditor may opt for the court of the judgment debtor’s domicile, or for the court of the place where the assets subject to enforcement are located (article 516, item III and sole paragraph of the CPC ) .
Foreign Judgment: As provided for in article 9, item I of the CP , the foreign judgment, when the application of Brazilian law produces the same consequences in kind, can be ratified in Brazil, to oblige the convict to repair the damage, restitution and other civil effects.
Minimum value, repair system, prescription, authorship and existence of the fact
Setting a minimum amount of reparation in the judgment: This innovation, setting a minimum amount, was not the happiest, as it deviates the process from its true course. The purpose of the process is to deal with the freedom of the accused, a very serious issue, and one that cannot be shuffled with debates and evidence around values. Instead of one, there are now two contradictories in the process. One about freedom, one about money. Better to leave it to the criminal jurisdiction, which belongs to the criminal jurisdiction, to the civil jurisdiction, which belongs to the civil jurisdiction. On this issue, see the subheading Item IV and minimum amount for repairing damages under the heading Contents of the conviction , in comments on article 387. In any case, the record that setting a minimum amount in the sentence is not common on the part of judges.
Repair systems: There are four repair systems . The one of free choice , where the offended person chooses to accumulate, or not, the civil claim in the criminal process. Confusion , when both claims, civil and criminal, are contained in the same process . The solidarity one , in which, although they are two lawsuits, they are judged jointly. the separation, in which civil and criminal claims are sought in separate proceedings. The Brazilian system is one of relative separation. There is separation, but there is not complete independence, since not only can the condemnatory sentence be executed in the civil court, but also certain issues decided in the criminal proceedings are not discussed in civil proceedings, such as authorship and existence of the fact (article 935 of the CC ). Also, in accordance with the provisions of article 65 of the CPP, “ a criminal sentence that recognizes that the act was practiced in a state of necessity, in self-defense, in strict compliance with a legal duty or in the regular exercise of a right, is res judicata in civil matters. ”.
Decision on authorship and existence of the fact in the criminal proceedings: Article 935 of the CC states that “ civil responsibility is independent of criminal responsibility, and it is no longer possible to question the existence of the fact, or who is the author of it, when these questions arise”. decided in the criminal court ”. Thus, if the criminal sentence says that the accused is the author, or that he is not the author, that the fact existed, or that it did not exist, such questions become indisputable for the purposes of civil liability.
Prescription of the claim for civil reparation: According to article 200 of the Civil Code , “ when the action originates from a fact that must be investigated in the criminal court, the prescription will not run before the respective final sentence ”. Once the criminal sentence becomes final, the deadline for filing the liquidation of the sentence is three years, under penalty of statute of limitations ( article 206, paragraph 3, item V of the Civil Code ).
Doctrine
Antonio do Passo Cabral: The minimum amount of civil indemnity established in the criminal conviction: notes on the new art.387, iv of the cpp .
Lucas Corrêa Abrantes Pinheiro. The syncretic minimum compensation and violations of due criminal procedure . Anadep.
Jurisprudence
Civil reparation for damages resulting from a crime: In order for the sentence to set a minimum amount for repairing the damage caused by the infraction, based on article 387, IV, of the CPP, it is necessary to expressly request the offended party or the Public Prosecutor’s Office and the granting of an opportunity of exercise of the contradictory by the defendant. Cited precedents: REsp 1.248.490-RS, Fifth Panel, DJe 5/21/2012; and Resp 1,185,542-RS, Fifth Panel, DJe of 5/16/2011 ( REsp 1,193,083-RS, Reporting Min. Laurita Vaz, judged on 08/20/2013, DJe 8/27/2013 – Newsletter No. 0528 ).
Non-retroactivity of article 387, IV, of the CPP, with the wording given by law 11.719/2008: The rule of article 387, IV, of the CPP, which provides for the setting, in the conviction, of a minimum amount for civil compensation for damages caused to the offended party, it only applies to crimes committed after the enactment of Law 11,719/2008, which reworded the provision. This is because it is a hybrid rule – substantive and procedural law – that is more burdensome for the defendant, so that it cannot retroact ( REsp 1.193.083-RS, Reporting Min. Laurita Vaz, judged on 8/20/2013 – Newsletter no. 0528 ).
Without contradiction, it is not feasible to establish a minimum amount of compensation in the sentence: The stipulation of the minimum amount provided for in article 387, IV, of the Code of Criminal Procedure is removed, without prejudice to the corresponding prosecution in an autonomous procedure, when there is no doubt the absence contradictory in this regard ( AP 563/SP, rel. Min. Teori Zavascki, judged on 10/21/2014, judgment published in the DJE of 11/28/2014 – Newsletter 764, Second Panel).
The stipulation of a minimum amount for repairing damages is removed when there is no doubt that there is no contradictory in this regard: (CPP) – without prejudice to the corresponding prosecution in an autonomous procedure -, when there is no doubt that there is no contradictory in this regard ( RvC 5.437/RO, rel. min. Teori Zavascki, judged on 12-17-2014, judgment published in the DJE of 18-3-2015 – Newsletter 772, Plenary Session).
Criminal sentence and minimum value of moral damage: The judge, when issuing a condemnatory criminal sentence, when setting the minimum value for repairing the damage caused by the infraction (article 387, IV, of the CPP), may, feeling able to of a concrete case, quantify, at least the minimum, the value of the moral damage suffered by the victim, provided that this option is justified ( REsp 1.585.684-DF, Reporting Minister Maria Thereza de Assis Moura, judged on 8/9/ 2016, DJe 8/24/2016 – Newsletter n. 588 ).
Civil liability and improper acquittal sentence
Illegitimacy of the civil responsible: The condemning criminal sentence does not reach the civil responsible ( article 932 of the Civil Code ). They are the subjective limits of res judicata, which only produce effects between the parties to the process. The civil responsible is an illegitimate party to appear as a party in the civil process of compliance with the condemnatory criminal sentence. The right against him must be sought in a knowledge action, that is, through the action referred to in article 64 of the CPP .
Judicial pardon and improper acquittal sentence: According to the diction of article 515 of the CPC , it is the “ final and unappealable criminal sentence ” that constitutes a judicial enforceable title. When the commission of the crime is proven (typicality, anti-juridicity and culpability), and the respective authorship, and, recognizing the non-imputability and dangerousness of the accused, he is acquitted and a security measure is applied, there is the so-called acquittal sentence inappropriate. As this sentence acquits and applies a security measure, it does not lend itself to being enforced in civil cases. Likewise, the decision granting pardon cannot be enforced in the civil court, since, under the terms of Precedent 18 of the STJ, once pardon has been conferred, there is no condemnatory effect. The content of the Precedent: ” The concessive sentence of judicial pardon is declaratory of the extinction of the punishment, not having any condemnatory effect .”
Restitution, insurance measures, agreements, indemnities and interest
Restitution of assets and security measures: The legislation seeks to safeguard and preserve the rights and assets of the offended party, seeking, if not to prevent the damage caused by the crime, to mitigate it. The restitution of seized things may be ordered by the police authority or judge, by means of a term in the records, provided that there is no doubt as to the right of the claimant ( article 120 of the CPP ). It is up to the seizure of real estate, acquired by the defendant with the proceeds of the infraction, even if they have already been transferred to a third party ( article 125 ). For the seizure to be decreed, the existence of vehement evidence of the illicit origin of the assets will suffice ( article 126). The legal mortgage on the defendant’s properties may be requested by the victim at any stage of the process, provided there is certainty of the infringement and sufficient evidence of authorship ( article 134 ).
Incentives to repair the damage: The CPP contains norms that aim to encourage the accused to repair the damage. In crimes committed without violence or serious threat to the person, repairing the damage or returning the thing, until the receipt of the complaint or the complaint, by voluntary act of the agent, the penalty will be reduced by one to two thirds (article 16 of the CP ) . It constitutes a circumstance that mitigates the penalty “ having the agent sought, of his own free will and efficiently, shortly after the crime, having, before the trial, repaired the damage” ( article 65, item III, letter “b ”). Conditional release can be granted provided that the convict has repaired, unless it is impossible to do so, the damage caused by the infraction ( article 83 of CP). The concession of rehabilitation is conditioned to compensation for the damage, except, of course, the impossibility of doing so ( article 94, item III of the CP ).
Enforcement of the agreement reached in the Special Criminal Court: In the Special Criminal Court, at the preliminary hearing, it is possible for the offended party and the offender to reach an agreement regarding civil damages. Once homologated, it will be effective as a title that can be executed in the competent civil court ( articles 72, 73 and 74 of Law n. 9.099/95 ).
Compensation in the case of homicide: In the case of homicide, the compensation consists, without excluding other reparations, of the payment of expenses with the treatment of the victim, his funeral and the mourning of the family; in the provision of maintenance to the persons to whom the deceased owed it, taking into account the probable duration of the victim’s life ( article 948, items I and II of the Civil Code ).
Indemnity in the event of injury or harm to health: In the case of injury or other harm to health, the offender will indemnify the victim for treatment expenses and loss of earnings until the end of the convalescence period, in addition to any other damage that the victim proves to have suffered. . If the offense results in a defect whereby the victim is unable to exercise his trade or profession, or if his ability to work is reduced, the indemnity, in addition to the costs of treatment and loss of earnings until the end of the convalescence, will include a pension corresponding to the amount of the work for which he was disabled, or the depreciation he suffered. The injured party, if he prefers, may demand that the compensation be arbitrated and paid at once ( articles 949 and 950 of the Civil Code ).
Death of a minor child: The accident that causes the death of a minor child is payable, even if he/she does not perform paid work – Precedent 491 of the STF – Jurisprudence subsequent to the statement .
Interest: In obligations arising from an unlawful act, the debtor is considered to be in arrears, as long as he committed it ( article 398 of the CC ). ” Default interest flows from the harmful event, in case of non-contractual liability ” – Precedent 54 of the STJ . In indemnities for unlawful acts, compound interest is only due by the person who committed the crime – Precedent 186 of the STJ .
