Risk of fraud justifies that judge requires updated procedural representation

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Subpoenaing a party to demonstrate that the procedural representation is in order is not abusive conduct, but rather a safeguard of rights and, as a result, prevention of fraud. After all, the judge, aware of the general power of caution, seeks full certainty that the plaintiff is effectively aware of the existence of the demand being proposed.


With this understanding, the 9th Civil Chamber of the Court of Justice of Rio Grande do Sul maintained a decision  that required the addition of updated documents from a ''contumacious litigant'': power of attorney with a signature recognized for authenticity, containing specific powers for the case; and proof of address, in the form of water, electricity or telephone bills, as long as they are current.

The decision was taken in the case of compliance with a judgment in a registration cancellation action against a credit card administrator. The author considered the measure to be mistaken and contrary to jurisprudence, also complaining about notary costs.

According to him, the power of attorney attached to the case is from December 2014, has not been revoked and grants special powers to the patron to receive permits and grant discharge, with the measures requested by the court being dispensable.

In this sense, according to the appellant, the provisions of paragraph 4 must be applied. of article 105 of the new Civil Code. The device says:

Unless expressly provided otherwise in the instrument itself, the power of attorney granted in the knowledge phase is effective for all phases of the process, including the enforcement of a sentence''.

The party further maintained that the lawyer's good faith should be presumed, and not the other way around. Therefore, he wanted the judge to order the issuance of a license for the amounts deposited in the lawyer's name.



Interest of those under jurisdiction
The rapporteur of the appeal, judge Carlos Eduardo Richinitti, explained in the ruling that it is common for fraud to occur, such as actions filed without the party's knowledge, especially the so-called ''mass actions''.

In view of this situation, the General Inspectorate of Justice, through Circular Letter 077/2013-CGJ, recommends that magistrates require the addition of updated documents, in order to protect the interests of those under jurisdiction. These are ''precautionary measures'' regarding the rights of the parties, in cases of suspected fraud or irregularity in procedural representation.