The italian theory of the effective prejudice for nullity declaration and its application in brazilian law: a comparative study

Abstract

According to the classical view of procedural law, nullity declaration would always be associated with non-compliance with the established form. Nowadays, interpretations in Italian law indicate a move towards overcoming the formal rigidity and instead linking nullity to other conditions; among these, that the party has suffered effective prejudice in the exercise of procedural powers subsequent to the nullity declaration. This could not only imply a procedural prejudice, in the case of a violation of the right to defense, but also an injustice order, as the party could have relevant evidence to add that could influence a favorable decision. In this sense, the present study aims to understand the concept of effective prejudice, especially if compared with the mere prejudice experienced by a party in a procedural context. Thus, through comparative study and the analysis of materials such as articles and works dealing with the subject, it also seeks to trace the historical evolution of the issue of nullities in Brazilian law, identifying its current phase and how the notion of prejudice itself has evolved over the years. Furthermore, since this condition is not a requirement in any of the cited national legal systems, the goal is to delineate the possible limits the theme . Finally, the main objective is to determine whether, in the current state of development of nrazilian legal science, the concept of effective prejudice, as understood in Italian law, is applicable to our legal system.