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> Post-Independence > Constitutions (US) / Codes (French) > Civil Procedure. Latin American Law. Last updated 5 Oct 11. Brazilian national anthem.
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> Post-Independence > Constitutions (US) / Codes (French)> Civil Procedure Latin American Law Last updated 5 Oct 11
Brazilian national anthem The placid banks of Ipiranga heardthe resounding cry of a heroic peopleand in shining rays, the sun of libertyshone in our homeland's skies at this very moment.If the assurance of this equalitywe achieved by our mighty arms,in thy bosom, O freedom,our chest shall defy death itself!O beloved,idolized homeland,Hail, hail! Brazil, an intense dream, a vivid rayof love and hope descends to earthif in thy lovely, smiling and clear skiesthe image of the (Southern) Cross shines resplendently.Giant by thine own nature,thou art beautiful, thou art strong, an intrepid colossus,and thy future mirrors thy greatness.Beloved Landamongst a thousand othersart thou, Brazil,O beloved homeland!To the sons of this landthou art a gentle mother,beloved homeland,Brazil!
US Constitution (1791) French Declaration Rights of Man (1789) (Rich McPherson) Mexico (1824) Mexico (1917) Spanish Constitution (1812) Brazil (1891) • Equality • Standing committee • Special courts • State of siege Brazil (1824) • Separation of powers • Federalism • Individual liberties • Judicial review Argentina (1853) Keith Orgel: Mexico and Brazil
“By my blood, by my honor, and by God: I will make Brazil free.” Dom Pedro
“There, one opinion of Marshall is worth as much as a law.” -- Ignacio Vallarta
Constitutional comparisons Chile Similar ▪ Men are born free and equal, in dignity and rights. ▪ Equal protection under the law in the exercise of their rights. ▪ Freedom to express opinions and to disseminate information without prior censorship Different ▪ The family is the basic core of society. ▪ The law protects the life of those about to be born. ▪ The right to protection of health. ▪ The right to education. ▪ Freedom to work and protection of that freedom. Universal Declaration of Human Rights International Covenant on Economic, Social and Cultural Rights
Constitutional comparisons Venezuela Similar ▪ The Constitution is the supreme law and foundation of the legal order ▪ Al persons are equal before the law ▪ No person shall be arrested or detained except by virtue of a court order ▪ All judicial and administrative actions shall be subject to due process ▪ Any person shall be presumed innocent until proven otherwise. Different ▪ Spanish is the official language ▪ Penalties consisting of deprivation of liberty shall not exceed 30 years. ▪ The State shall protect families as a natural association in society, and as the fundamental space for the overall development of persons ▪ The State shall guarantee senior citizens the full exercise of their rights and guarantees ▪ Financing of the public health system is the responsibility of the State, which shall integrate the revenue resources, mandatory Social Security contributions and any other sources of financing provided for by law.
Constitutional comparisons Universal Declaration of Human Rights International Covenant on Economic, Social and Cultural Rights Brazil Similar ▪ All persons are equal before the law ▪ freedom of conscience and of belief is inviolable Different ▪ It is incumbent upon the Government, as provided by law. to organize social welfare ▪ Health is a right of all and a duty of the State and shall be guaranteed by means of social and economic policies ▪ Education is the right of all and duty of the State and of the family ▪ Payrate for night-shift work higher than that for daytime work
Constitutional comparisons Argentina Similar ▪ Nobody may be compelled to testify against himself, nor be arrested except by virtue of a written warrant issued by a competent authority ▪ The defense by trial of persons and rights may not be violated. Different ▪ The Federal Government supports the Roman Catholic Apostolic religion ▪ The prisons of the Nation shall be healthy and clean, for the security and not for the punishment of the prisoners confined therein; ▪ As regards consumption, consumers and users of goods and services have the right to the protection of their health, safety, and economic interests; to adequate and truthful information; to freedom of choice and equitable and reliable treatment.
French “code civil” (1804) Chile Civil Code (1852) Andres Bello (1781-1865) Brazil draft civil code (1856) Augusto Teixeira de Freitas (1816-1883) Argentina Civil Code (1869) Dalmacio Velez Sarsfield(1801-1875)
French “code civil” (1804) Haiti (1825) Spanish Civil Code (1889) Bolivia (1831) • Argentina Civil Code • 30% Brazil draft • 17% Austria profs • 7% Spanish comment • 4% Chile CC • 4% French CC • 3% French comment • 2% German comment • 1% Louisiana CC • 1% Belgian comment • 1% Uruguay draft • 30% miscellaneous Brazil draftt (1856) Chile (1852) • rationalist, utopian, and highly individualistic • values of the Enlightenment and French Revolution • Keith Orgel / Trevor Ostbye Argentina (1869)
French commercial code (1807) Haiti (1825) Ordinances of Bilbao (1737) Colombia Spanish commercial code (1829) Brazil (1850) Portuguese commercial code (1833) Chile (1867) Civil Code (non-merchant) vs. Commercial Code (merchant / profit) Argentina (1859)
Commercial Acts in Latin American Codes Comparable Articles of the UCC Purchase of goods for resale 2. Sales Banking and securities transactions 4. Bank Deposits 8. Investment Securities 9. Secured Transactions Brokerage and agency Negotiable Instruments 3. Negotiable Instruments Commercial bailments 7. Warehouse Receipts, Bills of Lading and Other Documents of Title Warehousing. Transport, business associations, and insurance ? . It seems as if many Latin American countries, such as Nicaragua, will not modify their commercial code unless trading partners dangle the carrot of free trade
The Index of Economic Freedom (Heritage Foundation and WSJ) measures economic freedom in 10 economic areas. Lowest levels of economic freedom in LatAm: • property rights (ability to purchase and hold property / property laws actually enforced by the government), • financial freedom (banking security and independence from total governmental control / no political favoritism), • freedom from corruption (both in the marketplace and the government).
Pleading stage Appellate review (scope) Discovery (info gathering) Pre-trial (filters) Trial (evidence) Role of judge Judgment (costs, loser pays) Compare to Brazil CPC Trevor Ostbye Enforcement (govt officials)
"I think 24 years is a long time to start a trial…[t]hese murderers are laughing at all of us, at you judges, at the prosecutors, the lawyers…[t]hey are dying without telling us the truth."
Enforcing a $10,000 Judgment by Attaching a Bank Account Argentina Mexico Peru France Official cost 23% of the original debt 23% of the original debt 22% of the original debt 7% of the original debt Unofficial cost No survey data 3 to 7% of the original debt 5 to 10% of the original debt No survey data Time under the law 2 to 3 months 3 to 5 months 3 to 5 months 1 month Time in practice 6 to 8 months 6 to 8 months 6 to 9 months No survey data Number of steps [petition-payment] 6 steps 7 steps 6 steps 5 steps Agencies involved Judge; justice officer Judge; Natl Banking Com.; justice officer Judge; justice officer Huissier Argentina Mexico Peru France Official cost 33% of the original debt 32% of the original debt Up to 40% of the original debt 10% of the original debt + lawyer fees Unofficial cost No survey data 3 to 7% of the original debt 5 to 10% of the original debt No survey data Time under the law 9 months 9 months to 1 year 8 months No survey data Time in practice 1.5 to 2 years 1.5 to 2 years 1 to 1.5 years No survey data Number of steps [petition/payment] 11 steps 11 steps 11 steps 10 steps Agencies involved Judge; justice officer; auctioneer Judge; justice officer Judge; justice officer; auctioneer Huissier; judge; auctioneer Enforcing a $10,000 Judgment by Attaching a Bank Account Enforcing a $10,000 Judgment by Attaching and selling real estate
