1. Is your jurisdiction primarily a common law, civil law, customary law or theocratic law jurisdiction? Are the laws substantially derived from the laws of another jurisdiction and, if so, which? What instruments have legal force and effect? Who are the lawmaking bodies? How and where are new laws published? Can laws be passed with retrospective effect?
Brazilian civil law is based on Roman-Germanic tradition and has mainly been influenced by European civil law traditions (of France, Germany, Portugal, Spain and Italy). Classical Roman law also shaped the development and formation of Brazilian law.
However, despite stemming from a clear civil law tradition, the Code of Civil Procedure promulgated in 2015 incorporated elements of common law, including the use of precedents.
Brazil is a federal state where the Federal Constitution is the highest law of the land. Federal law is applied to contracts, commercial and civil laws. State law governs the remaining fields.
Legislative power at the federal level is bicameral and the Congress is divided into the Senate and the House of Representatives. At the state level, only one entity exercises legislative power.
Once a law is enacted, it goes into effect and takes force at the date it is published in the Official Gazette, unless otherwise provided. As a general principle, a law cannot be retroactive nor have retrospective effects. This is provided for in the Constitution, as article 5, XXXVI reads that “the law shall not injure the vested right, the perfect juridical act and the res judicata” (emphasis original). However, two exceptions exist: (i) a retrospective law that does not violate article 5, XXXVI can be valid; and (ii) criminal laws can have retroactive effects when they benefit an accused person (const., article 5, XL).Answer contributed by David Kiefer and Maria Cristina Rosales del Prado
McDermott Will & Emery