Art. 100. If the suspicion is not accepted, the judge will order the petition to be recorded separately, give his answer within three days, being able to instruct it and offer witnesses, and then will determine that the exception records be sent, within twenty-four hours, to the judge or court in charge of the judgment.
§ 1 Once the relevance of the allegation has been preliminarily recognized, the judge or tribunal, after summoning the parties, will set a date and time for the questioning of the witnesses, followed by the judgment, regardless of further allegations.
§ 2 If the suspicion is manifestly unfounded, the judge or rapporteur will reject it outright.
Judge who rejects the exception of suspicion
Procedure at 1st instance. Filing in a separate section: If the judge understands that he is not a suspect, he will determine that the incident be recorded in a separate section and issue his reasoned decision, being able to attach documents and list witnesses. Then, he will forward the records to the court for judgment, and determine the subpoena of the opposing party.
Filing in electronic process section: Incidents are usually reported separately so as not to hinder the progress of the main process. They are processed independently. Usually attached to the main process. The attachment is viewed as a link . Clicking on it opens the attached file. Link is English word. It means connection, link. It is widely used in computing. It establishes a clickable command through word or image that allows redirection to another internet page (which can be another process or a document).
Adversary notice: When sending the exception records to the court, the opposing party must be summoned. If the defense is excipient, the MP must be subpoenaed. If it’s the MP, the defense must be. In this way, aware of the exception being processed before the court, the opposing party may exercise the right established in article 102, that is, to recognize the merits of the claim, thus allowing the court to stay the main proceedings until that the incident of suspicion be judged. It should be noted that, as a general rule, the exception of suspicion does not suspend the progress of the main proceedings. The competence to suspend the progress of the proceedings (an option), at the request of the opposing party, does not belong to the judge, but to the court, not only because of the topographical position of article 102 (after article 100), but also because the body that proceeds to examine the relevance, or not, the court is responsible for the allegations of suspicion. In other words, the question is sub judice before the court, no longer before the judge.
Procedure in court: Upon receipt of the records, the rapporteur may outright reject the exception of suspicion if it is manifestly groundless, which happens when, for example, the alleged facts do not characterize grounds for suspicion (note that the legal enumeration is not exhaustive). Recognized, in a preliminary analysis, the relevance of the argument, the court, with citation of the parties, will set a day and time for the questioning of the witnesses, followed by the judgment, regardless of further allegations.
