Felipe Porfírio Granito, Marco Antonio de Lima, Murilo Mendes Latorre Soares, and Otavio Guimarães Leite Losada*
The National Council of Justice (CNJ) recently published the Regulation of the Judiciary’s Asset Search System – Sisbajud, through Ordinance No. 3, dated October 14, 2024.
This new regulation establishes, among other provisions, that brokerage firms and securities dealers that fail to comply with court orders to freeze clients’ assets may be held liable for non-compliance with the obligation. Furthermore, Article 24 of the regulation allows for potential breaches of banking secrecy and the public disclosure of non-compliant institutions in official records.
Overall, by assigning greater responsibility to brokers, dealers, and banks for complying with asset-freezing orders, the new regulation has direct impacts on financial institutions.
It is clear that the CNJ’s objective was to enhance transparency and the effectiveness of judicial decision enforcement, guided by public interest and trust in the financial system. However, the regulation raises questions about the CNJ’s regulatory authority, as defined in Article 103-B of the 1988 Federal Constitution, particularly paragraph 4.
With this in mind, the sole purpose of this article is to analyze whether the regulation complies with the Federal Constitution, the principles of separation of powers, and the legal reservation principle. Without such compliance, the CNJ’s initiative—regardless of how well-intentioned—would fall outside the bounds of the legal framework.
As a body of the judiciary, the CNJ has the authority to issue both autonomous and executive regulations. The former are equivalent to statutory laws, i.e., issued under the legislative branch’s primary function; the latter merely supplement the law and have a complementary nature.
Autonomous regulations are an exception within Brazil’s legal system and, in the case of the CNJ, may only be issued if they serve one of the Council’s specific functions. In other words, the CNJ may only issue an autonomous regulation—effectively creating new legal norms—if the matter pertains to overseeing the judiciary’s administrative and financial operations or ensuring judges fulfill their official duties.
From this perspective, assigning joint liability—especially to brokers and dealers—can be seen as an improper expansion of these institutions’ legal obligations, as liability for non-compliance with asset-freezing orders should be established by statutory law. Such a topic falls outside the scope of what the CNJ is authorized to regulate autonomously.
Moreover, it is important to emphasize that joint liability cannot be presumed; it must be established by law (in the strict sense) or by agreement between parties, as set out in Article 265 of the Civil Code. Therefore, the current legal framework clearly states that solidarity must be created by laws passed by the legislature, meaning the new regulation exceeds the CNJ’s regulatory authority, turning an administrative act into an instrument for imposing obligations without meeting constitutional requirements.
The constitutional issue surrounding the measure directly invokes the principle of legality, a cornerstone of Brazil’s democratic rule of law, enshrined in Article 5, item II, of the Federal Constitution. On this matter, Celso Bandeira de Mello notes that “the constitutional provisions establishing the principle of legality in Brazil impose on regulations the character of being strictly subordinate acts—merely auxiliary and dependent on statutory law.”
Thus, imposing joint liability without due judicial process that ensures the right to adversarial proceedings and full defense—core elements of due process—constitutes a direct violation of this principle.
Additionally, the new regulation may infringe upon the principle of separation of powers (Article 2 of the Constitution), which guarantees the independence and harmony among the Executive, Legislative, and Judicial branches. Issuing a rule beyond the CNJ’s constitutional authority, as in this case, may intrude on the legislative branch’s domain, which is the proper source of legal innovation.
Furthermore, the regulation provides for the creation of a public ranking of institutions that fail to comply with court orders. This could further undermine legal certainty by exposing brokers and banks to severe consequences even before the conclusion of judicial or administrative proceedings. Similarly, Article 24 appears to be at odds with Complementary Law No. 105/2001, which governs the confidentiality of financial institution operations, since it introduces other forms of breach of banking secrecy not legally authorized.
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In conclusion, the overlap between lack of legal certainty, violations of due process, and potential breaches of the separation of powers principle reveals a set of vulnerabilities that must be analyzed through a constitutional lens. Under this scenario, affected financial institutions and brokerage firms have strong grounds to challenge the constitutionality of the regulatory provisions in court.
Therefore, by establishing joint liability for the aforementioned institutions, the CNJ’s regulation may violate several constitutional principles, as the imposition of new obligations and assessments was not supported by statutory law but rather through a sub-legal normative act that exceeds the Council’s constitutional powers.
Source: Conjur.