Two types of precautionary proceedings are distinguished: general precautionary proceedings and specified precautionary proceedings. The application of a general precautionary measure is subject to the following premises: 1. The claimant’s assertion of the likelihood of a right’s existence (fumus boni juris), where the court only needs to examine the appearance of the right and not its substance. 2. The existence of well-founded fear that a third party would cause a serious and irreparable violation of the claimant’s right (periculum in mora), whether before or during the main action. 3. The measure is sufficiently effective to address the imminent harm and safeguard the subsequent enforcement of the right. 4. The harm caused by the precautionary measure does not outweigh the harm it seeks to prevent.
The new Portuguese Code of Civil Procedure (CPC) was approved and came into effect in 2013. Its main objective is to “reduce procedural forms and simplify the regime, ensuring effectiveness and speed, while emphasizing the de-formalization of procedures, procedural orality, and limiting relevant procedural issues to make the process more effective and comprehensible for the parties.”
The Portuguese judicial system was previously subject to formalism and procedural rigidity. The proposed law simplified the formalities of litigation processes and emphasized the judge’s autonomy during litigation to expedite proceedings. It also sought to adopt simplification and speed mechanisms to resolve disputes within a reasonable timeframe, respecting the principles of party equality and the right to a fair hearing.
The Portuguese government, in the explanatory memorandum of the CPC proposal, stated that establishing the reversal of litigation aimed to prevent the same dispute that was addressed and resolved during precautionary proceedings from being entirely repeated in the main action. This approach avoids the costs and delays arising from such procedural duplication.
Under Article 369 of the 2013 CPC, if the elements presented by the claimant are sufficient to convince the judge of the existence of the right being safeguarded and the nature of the precautionary measure granted is suitable for resolving the dispute definitively, the judge may, at the claimant’s request, exempt them from filing the main action in the decision granting the precautionary measure.
This request can be made no later than the conclusion of the final hearing and does not need to accompany the application for the precautionary measure. If the safeguarded right is subject to a limitation period, that period is interrupted by the request for the reversal of litigation or restarts from the date on which the decision denying the request becomes final and unappealable.
The term “reversal” is used in this regime’s designation because, without prejudice to the rules on the burden of proof (where the claimant must prove their claim), the defendant is notified of the decision granting the precautionary measure and the reversal of litigation when they become final. The defendant is informed of their obligation to file an action challenging the existence of the safeguarded right within 30 days of notification, failing which the precautionary measure becomes the definitive resolution of the dispute.
The rejection of the reversal of litigation cannot be appealed by the claimant.
It is necessary to distinguish two scenarios: if the requested precautionary measure was granted or denied. If the request for a precautionary measure is denied, appealing the rejection of the reversal of litigation presupposes an appeal of the denial of the precautionary measure. This is a justifiable requirement. In the absence of any precautionary measure, a standalone appeal of the rejection of the reversal of litigation would undoubtedly be an exercise in wasting judicial resources. If the measure is granted, the claimant’s right is temporarily protected, and there is no harm to the claimant, even if they are not exempted from filing the main action. The rejection of the reversal of litigation can only be attributed to one reason: the nature of the precautionary measure is not suitable for resolving the dispute definitively (because granting the precautionary measure implies sufficient facts and evidence for the judge to be reasonably convinced of the claimant’s right).
The unappealability of these decisions reflects the legislator’s balance between the claimant’s and defendant’s interests. The initial protection granted to the claimant is detrimental to the defendant. However, if the judge decides that the burden on the defendant should not be increased at this stage, the legislator considers it unnecessary to incur litigation costs to revisit the issue.
Judicial resources in Macau are scarce, and the number of pending cases in courts is enormous. The limitation of resources and manpower hinders the timely resolution of cases, jeopardizing the effectiveness, stability, and credibility of the judicial system. Additionally, an increase in litigious cases may lead to greater financial burdens on the judicial system. Litigation costs, as well as the operational expenses of courts and the Public Prosecutor’s Office, are expenses the Macau Government must consider.
Introducing the legal mechanism of the reversal of litigation into Macau’s legal framework could be a practice that the Macau legislator might explore. Alternatively, Macau could build on the foundations laid by the Portuguese legislator to develop a system better suited to Macau’s judicial context.
