THE INSTITUTE OF “REMESSA NECESSÁRIA” IN LIGHT OF THE ORDINATIONS OF THE KINGDOM OF PORTUGAL AND THE BRAZILIAN IMPERIAL LEGISLATION

Abstract

The present article seeks to contribute to the discussion about the “Remessa Necessária”, positived at art. 496 of the Brazilian Code of Civil Procedure, and its conformation with the Constitution. Therefore, it is made a historical study of this institute commonly pointed out by the doctrine as its origin: the ex-officio Appeal in the Afonsine Ordinations. The objective is to verify if, in fact, this represents its genesis enough to confers an aspect of traditionality to it. The research was bibliographical, of historical method, dealing with Lusitanian legislation and the Brazilian colonial and imperial period. Based on the data collected, it was concluded that the ex-officio Appeals Institute has a legal basis different from the “Remessa Necessária”, either in its current conception or in those that it may have assumed since its first appearance in the national legislation. It is demonstrated that it is problematic, therefore, the absolute affirmation that the portuguese institute mentioned is the origin of the ”Remessa Necessária”, not observing a direct connection between the devices. Therefore, there is no ground to the argument that the brazilian institute traces its lineage back to the portuguese ordinations. As such there is no common tradition between them. Finally, it is maintained that a more reliable historical milestone for the “Remessa Necessária” in the Brazilian order would be the Law of October 4, 1831, about the "organization of the National Treasure and the Thesourarias of the Provinces."