Extract of the Law N. 78/2001- 13 July - Justices of the Peace
Article 2
General principles
1 - The actuation of the Justices of the Peace is dedicated to allow the civic participation of interested parties and to stimulate the just composition of disputes by agreement of the parties.
2 - The procedures in the courts of the peace are designed and are guided by principles of simplicity, adequacy, informality, oralism and absolute procedural economy.
Article 4
Territorial circumscription and headquarters
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3 - Within of the respective area of circumscription, the Justices of the Peace can function anywhere appropriate and may establish different places for the practice of procedural acts.
Article 6
Of competence by reason of object
1 - The competence of the Justices of the Peace is exclusive to declaratory actions.
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Article 9
By reason of substance
1 - The Justices of the Peace are competent to appreciate and decide:
a) Actions destined to accomplish the fulfillment of obligations, with the exception of those whose object is pecuniary rendering and of that is or was a lender originating a collective entity;
b) Actions of delivery of movables;
c) Actions resulting of rights and obligations of joint owners, whenever that the respective assembly has not deliberate on the compulsory arbitration to resolve disputes between joint owners or joint owners and the administrator;
d) Actions to resolve disputes between owners of buildings related to the forced momentary passage, natural draining of waters, defensive works of waters, community of ditches, rivulets and hedges, alive hedges, opening of, doors, balconies and similar works; distillation , planting trees and shrubs, walls, and divisors walls;
e) Possessory actions, usucapion and accession;
f) Actions that respect the right of use and administration of the co-ownership, of the surface, of the usufruct, of use and dwelling and real right of timeshare;
g) Actions which relate to the urban rent, except actions of ejectment;
h) Actions that respect to contractual and extra contractual civil liability;
i) Actions of covenant, except the employment agreement and rural lease;
j) Actions which concern to the general guarantee of obligations.
2 - The Justices of the Peace are also competent to appreciate civil claims for indemnity, when has not been presented criminal participation or after withdrawal of the same, arising from:
a) Simple corporal offenses;
b) Offense to the physical integrity for negligence;
c) Defamation;
d) Injuries;
e) Simple larceny;
f) Simple damage;
g) Alteration of bounders;
h) Fraud for attainment of food drinks or services.
3 - The appreciation of a civil claim for compensation, under the preceding paragraph, precludes the possibility of bringing the respective criminal procedure.
Article 16
Mediation Service
1 - In each justice of peace exists a mediation service that provides to any interested parties the mediation as a form of Alternative Dispute Resolution (ADR).
2 - The service has as objective to stimulate the resolution, with preliminary character, of disputes by agreement of the parties.
3 -The mediation service is competent to mediate any disputes, although excluded of the jurisdiction of Justices of the Peace, except those which concern inalienable rights.
4 - The regulation, conditions of access to mediation services of the Justices of the Peace and the inherent taxes are approved by order in Council of the Minister of Justice
Article 23
Requirements
It can only be judge of peace who meet, cumulatively the following requirements:
a) Have Portuguese nationality;
b) Possess a law degree;
c) Be older than 30 years;
d) Be in full enjoyment of civil and political rights;
e) Not have been convicted, nor be pronounced by a fraudulent crime;
f) To have ceased, or terminate immediately prior to assumption of the functions as judge of peace, the practice of any other public or private activity.
Article 24
Recruitment and selection
1 – The recruitment and selection of the judge of peace is made by opened public contest for the purpose, through curricular evaluation and public examinations.
2 - Are not subject to the accomplishment of tests:
a) The judges or prosecutors;
b) Who exerted functions as a judge under in the terms of the law;
c) Who exercises or has served as a public prosecutor;
d) University professors who have master's degrees or doctorates in law;
e) Former Presidents of Bar Association, presidents of district councils and members of the General Council of the Bar;
f) The former members of the Superior Council of Magistracy, the Supreme Council of Administrative and Fiscal Courts and the Supreme Council of the Prosecution.
3 - The contest regulations are approved by Order in Council of the Minister of Justice.
Article 25
Appointment and nomination
1 - The judges of peace are provided for a period of three years.
2 -The judges of peace are appointed by the Council of Accompaniment referred to in Article 65 who exerts on the same the disciplinary power.
Article 26
Functions
1 – Competes to the judge of peace uttering, according to the law or equity, the decisions concerning matters that are submitted to the Justices of the Peace, having, previously, to look for to conciliate the parties.
2 - The judge of peace is not subject to strict criteria of legality, being able, if the parties so agree, to decide according to good senses of equity when the value of action does not exceed half of the value of the jurisdiction of the court of 1st Instance.
Article 30
Mediators
1-The mediators who work with the Justices of the Peace are professionals independent appropriately qualified to provide mediation services.
2-In performing this function, the mediator must act with impartiality, independence, credibility, competence, confidentiality and diligence.
3-The mediators are prevented from practicing as lawyers in the Justices of the Peace they serve.
Article.31
Requirements
The mediator must meet the following requirements:
a) To have over 25 years of age;
b) To be in full enjoyment of their civil and political rights;
c) To possess an adequate degree;
d) To be qualified with a mediation course recognized by the Ministry of Justice;
e) Not have been convicted, nor be pronounced by a fraudulent crime;
f) To have de domain of the Portuguese language;
g) To be preferably resident in the territorial area covered by the Justices of the Peace.
Article 32
Selection
1 - The selection of the mediators qualified to provide the services of their expertise in collaboration with the Justices of the Peace is made by contest opened for the purpose, through curricular evaluation.
2- The contest regulations are approved by Order in Council of the Minister of Justice.
Article 33
List of mediators
1 - In each Justice of the Peace there is a list contend, in alphabetical order, the names of persons authorized to act as mediator and, as well as, its business address.
2 - The lists are updated annually by dispatch of the Minister of Justice and published in the daily Official Journal.
3 –The application on the lists is done at the request of the interested parties who fill the requirements foreseen in the Article 31 of the present law.
4 - The referred application does not invest the applicants in the quality of agent or assure the payment of any fixed fee on the part of the State.
5 - Is excluded from the list the mediator that has been convicted, or be pronounced by a fraudulent crime;
6 – The superintendence of the activity of mediators is made by a commission to be created for that purpose by Order in Council of the Minister of Justice.
Article 34
Regimen
The qualified mediators and selected to cooperate with the Justices of the Peace are hired in regimen to provide services, for annual periods, susceptible of renewal.
Article 35
Of mediation and functions of the mediator
1 – The mediation is an extra-judicial modality of resolution of disputes of private character, informal, confidential, voluntary and non-contentious nature, in which the parties, with their active and direct participation, are aided by a mediator to find by themselves, a negotiated and friendly solution to the conflict that opposes them.
2 - The mediator is one neutral third independent and impartial, unprovided of the powers to impose a binding decision mediated.
3 – Competes to the mediator organize and conduct the mediation, placing their theoretical preparation and their practical knowledge to the service of people who had chosen voluntarily their intervention, seeking to achieve the better and fairer useful result in reaching an agreement that satisfies them.
Article 36
Remuneration of the mediator
The remuneration of the mediator is assigned by each process of mediation, regardless of the number of sessions, being the respective amount fixed by the competent government supervision in the area of justice.
Article 38
Representation
1 - In the Justices of the Peace, the parties must appear personally and may be accompanied by a lawyer, trainee barrister or solicitor.
2 - This support is, however, required when the part is blind, deaf, dumb, illiterate, and ignorant of the Portuguese language or, if for no other reason, and is in a position of manifest inferiority.
3 - It is also obligatory to appoint a lawyer on appeal, if it will have place.
Article 40
Legal help
The general regimen of the legal help is applicable to the processes that run its terms in the Justices of the Peace and to the payment of the fee of the mediator.
Article 43
Submission of the petition
1 - The process begins for the presentation of the petition in the office of the Justices of the Peace.
2 - The petition may be submitted orally or in writing, in proper form, stating the name and domicile of the plaintiff and the defendant, containing a concise statement of facts, the request and the amount of the claim.
3 - If the petition is made orally, the clerk must reduce it to writing.
4 - If the defendant is present, this one can, immediately submit the reply, observing, with the rightful adaptations, the provisions of paragraph 2 of this article.
5 - In case of irregularity formal or material in the pleadings, the parties are invited to improve them orally at the beginning of the trial.
6 – The delivery of legal duplicates does not have place, fitting to the office to provide the parties a copy of the pleadings.
7 – In case that the petition referred to in paragraph 1 is submitted personally, then the claimant is notified of the date on which the pre-mediation session will take place
8 - The submission of a petition determines the interruption of the prescription, in general terms.
Article 45
Service of the defendant
1 - If the defendant is not present when submitting the request, the office should quote him to take notice that he is being sued, by forwarding a copy of the request of the plaintiff.
2 - The service must include the date of pre-mediation session, the deadline for submission of the defense and the sanctions incurred in case of default.
Article 47
The defence
1 - The defence may be submitted in writing or verbally, in which case the clerk must reduce it to writing, within 10 days counting of the summons.
2 - There shall be no extension of deadline for filing the defence.
3 - The plaintiff is immediately notified of the defence and, if he will not has been previously, the date of pre-mediation session.
Article 49
Pre-Mediation
1 - Received the request and initiate the process in the Justices of the Peace is accomplished a pre-mediation, provided that either one or both parties have not previously removed this possibility.
2 - The accomplishment of the pre-mediation can occur immediately if the parties are present and, with the agreement of these and the availability of a mediator, being soon followed by mediation session
Article 50
Objectives of pre-mediation
1 - The pre-mediation has as objective to explain to the parties about consists the mediation and to check the predisposition of these for a possible agreement in mediation phase.
2 - Stated positively the will of the parties, it is immediately marked the first mediation session.
3 - Verified negatively the will of the parties, the mediator gives knowledge of this fact to the judge of peace, which designates the date for hearing.
4 - The mediator who carries out the pre-mediation should not act as a mediator in the subsequent phase.
Article 51
Scheduling the mediation
1 - If both parties agree in passing to the mediation phase, a date is scheduled for the first session in one of the days immediately following the pre-mediation session, without prejudice to be performed immediately if the appointed mediator is available.
2 - Competes to the parties to select a mediator from among those in the list referred to in paragraph 2 of Article 33 of the present law, being that, if not agree, competes to the office to designate this one.
3 - The mediation will take place at the headquarters of the Justices of the Peace.
Article 52
Confidentiality
1 - The parties must sign, in advance, a mediation agreement, under which they assume that mediation has confidential character.
2 -The parties, their representatives and the mediator must maintain the confidentiality of written or oral statements made during mediation.
3 - The parties cannot have access to documents written by the mediator during the mediation.
4 - The mediator can not be a witness in any cause that opposes the mediated ones, although not directly related to the subject of mediation.
Article 53
Mediation
1 - The mediation has as main objective to provide to the parties an opportunity to resolve their divergences amicably and concerted.
2 - The mediation process is conducted by the mediator in cooperation with the parties.
3 - The mediator may, with consent of the parties have separate meetings with each of them, to clarify issues and seek different possibilities agreement.
4 - The corporate body should be represented by attorneys with special powers to give up, to confess or to transact.
5 - The parties may be assisted by lawyers, experts, technicians or other appointed persons.
6 - Competes to the mediator to assess the progress of the sessions and to decide on the need for its continuation, having to lead the mediation in a way so that it is complete in a period appropriate to the nature and complexity of the dispute in question.
Article 54
Lack of appearance to the pre-mediation or mediation
1 - If one of the parties does not appear to the session of pre-mediation or a mediation session, showing no justification within five days, the case is sent to the office to mark the date of hearing.
2 - Competes to the office marking, without possibility of postponement, the new date for pre-mediation or a mediation session within five days of submission of justification.
3 - Reiterated the lack, the process is sent to the judgment phase, having the office to notify the parties of the date of the respective hearing, which must take place within the next 10 days.
Article 55
Waiver
1 - The parties may, at any time, give up of the mediation.
2 - Being the waiver previous to mediation is this communicated to the office.
3 – In case that the waiver occurs during mediation, the communication is made to the mediator.
Article 56
Agreement
1 - If the parties reach agreement, this is reduced in writing and signed by all the intervenient, for immediate homologation by the judge of peace, having value of sentence.
2 -If the parties not to arrive the agreement or only partially reached, the mediator communicates such fact to the judge of peace.
3 - Upon being informed, it is marked day for the hearing, of which the parties are notified.
4 - A court hearing is held within a maximum of 10 days from the date of notification of the parties.
Article 57
The trial
In the trial the parties are heard, produced the evidences and pronounced sentence.
Article 59
Means of evidence
1 - Until the day of the trial, the parties should present the evidences they deem necessary or useful, each party can not offer more than five witnesses.
2 - Witnesses are not notified, belongs to the parties to present them at the trial.
3 - Requested the expert evidence, ceases the jurisdiction of the Justices of the Peace, the proceedings is sent to the competent court to continue there their terms, with use of the acts already practiced.
Article 61
Value of the sentence
The decisions pronounced by Justices of the Peace have the value of a sentence pronounced by a 1st Instance Court.
Article 64
Experimental project
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3 - The Government will celebrate with the autarchies of area or areas of circumscriptions foreseen in the preceding paragraphs, protocols regarding to the facilities, equipment and staff necessary for the installation of the experimental projects.
Article 65
Council of Accompaniment
1 - [...]
2 - The council is constituted by:
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3 - The Council will accompany the installation and functioning of the experimental projects and will present a report....
Article 66
Project Development
Having regard to the report of the Council of Accompaniment and the evaluation that he deserve of the Assembly of the Republic (Parliament), the Government shall present, within 90 days, a draft resolution with the program of creation and installation of Justices of the Peace in the entire national territory.
