One of the characteristics of this law is that it has very specific provisions on civil actions and their steps. The Code of Civil Procedure of Portugal consists of 1,528 articles. As compared with the corresponding law of many other countries and regions around the world, this law is pretty detailed in contents. However, in juridical practice, there have still occurred many questions or different understandings of certain provisions of this law. Therefore, to some extent, certain concepts or understandings of this law need to be unified through particular mechanisms in juridical practice.

This article is intended to compare the civil appeal system prescribed by the 1961 Code of Civil Procedure of Portugal with that defined by the 1999 Code of Civil Procedure of Macao, and to briefly introduce both the old and new systems. The 1999 Code of Civil Procedure of Macao, which was drafted in the process of "localizing" existing laws in Macao, is expected to go into effect in December, 1999. Through the comparison and introduction, differences between the old and new systems and questions expected to occur in future application of the new system will be pointed out.

Under Article 676 of the 1961 Code of Civil Procedure of Portugal, civil appeals are divided into ordinary appeals and extraordinary appeals.

(I) Ordinary appeals: Ordinary appeals refer to appeals against judgments and writs that have not turned determinate. Ordinary appeals are divided into four categories – substantial appeals, counter-appeals, appeals for review and appeals to the plenary court.

1. Substantial appeals: Substantial appeals refer to the type of ordinary appeals against final judgments and writs to clear substantial matters in cases accepted. In general legal proceedings, substantial appeals are of the suspension effect and the devolution effect.

2. Counter-appeals: Counter-appeals refer to the type of ordinary appeals against decisions made by courts of first instance against which no substantial appeals can be lodged. Generally speaking, they refer to the appeals against decisions of courts not to make a judgment on substantial matters in cases accepted.

The 1961 Code of Civil Procedure of Portugal prescribes in many parts of it the circumstances in which counter-appeals can be lodged. For example, it provides for the appeal against writs issued for conservatory measures in litigation, the appeal against writs to initially reject indictments, and the appeal against court decisions provisionally made on the return of possessions.

3. Appeals for review: Appeals for review refer to the type of ordinary appeals against collegiate bench judgments made by courts of appeal (tribunals da relacao) on substantial appeals lodged to them. An appeal for review can be lodged as long as the collegiate bench concerned has made a judgment on the substantial matter in the relevant case accepted. Appeals for review are intended to correct mistakes in the application or interpretation of legal provisions. In such an appeal, the party concerned can additionally state the reasons for the invalidation a judgment made by the collegiate bench concerned.

Therefore, appeals for review can only be lodged to the Court of Final Appeal for its review of relevant legal matters.

4. Appeals to the plenary court: Where the Higher Court of Justice has made two different collegiate bench judgments on a same fundamental legal matter that call for two different approaches of settlement opposing each other, the party concerned can lodge such an appeal to the court making the last collegiate bench judgment. Or, where a court of appeal has made a separate judgment on a same fundamental legal matter opposing an existing judgment, and the party concerned is not in a position that it can not lodge an appeal for review because of the limitation of legal appeal interests on the part of the relevant court, the party concerned can also lodge an appeal to the plenary court.

(II) Extraordinary Appeals: Extraordinary appeals refer to the type of appeals against determinate judgments. And, in an effort to eradicate a flaw in a procedure or judgment, the party concerned can lodge an extraordinary appeal. Or where a litigant has committed a fraudulent act by taking advantage of a lawsuit, an extraordinary appeal can also be lodged.

Extraordinary appeals are divided into two categories – Appeals for revision and appeals of opposition of the third party.

1. Appeals for revision: The 1961 Code of Civil Procedure of Portugal provides that in any of the following circumstances, a determinate judgment can become the object for an appeal for revision:

For a judgment against which a contention has already been raised through an appeal for revision, no further appeal for revision can be lodged, except for the circumstance that there occurs new legal basis for lodging a separate appeal for revision afterwards. If a judgment has been determinate for a period of not less than five years, no appeal for revision against it can be lodged.

The time limit for lodging an appeal for revision is 30 days. However, the time limit for the prosecution to lodge an appeal for revision is 90 days.

For a case that is still in an ongoing legal process, an appeal for revision can be made in advance. Namely, if the right to lodge an appeal for revision could expire because of an unexpected delay in such a process, the party interested has to lodge the appeal for revision even if no judgment has been made on the case. Under such a circumstance, the party interested shall file an application immediately for suspending the legal process of lodging the appeal for revision until the judgment on the case becomes determinate.

2. Appeals of opposition of the third Party: Under the 1961 Code of Civil Procedure of Portugal, if a dispute proves to be based on a fraudulent act between litigants concerned, and if the court concerned can not exercise the power granted by Article 665 because of not knowing the relevant fraudulent act, the party affected by a final judgment on the dispute shall lodge an appeal on the basis of appeal of opposition of the third party to dispute the judgment before it becomes determinate.

Those viewed as the third party include the party that has not participated in the legal process of making a disputed judgment and that has not acted as an agent for a losing party in the legal process, and the party without the civil capacity that has participated in the relevant legal process only in the capacity of a litigant through its legal agent, all with the purpose of lodging an appeal of opposition of the third party.

If a disputed judgment proves to be the result of deliberation or collaboration among litigants for the purpose of harming the interests of the appellant, any successor and creditor to the party concerned shall have the justification to lodge an appeal of opposition of the third party.

As far as the time limit for lodging the appeal of opposition of the third party is concerned, the 1961 Code of Civil Procedure of Portugal prescribes that as long as the judgment to be disputed by the appellant has been determinate for a period of not more than five years, the appellant can lodge an appeal of opposition of the third party within a period of three months counted from the date of learning the judgment to be disputed. For persons without the civil capacity, they can lodge an appeal of opposition of the third party one year after the expiration of the period in which they are defined as having no civil capacity.

The system of ordinary appeals defined by newly drafted Code of Civil Procedure of Macao has come as a result of total revision of the same system in the 1961 Code of Civil Procedure of Portugal. Unlike the Portuguese law, the new law does not elaborately classify the ordinary appeals into a number of categories. But, as far as the contents and principles are concerned, the new law still divides the ordinary appeals into two general categories – the appeals against judgments on substantial matters reviewed (similar to substantial appeals prescribed by the 1961 law) and the appeals against judgments on the review of procedural issues (similar to counter-appeals prescribed by the 1961 law). As for extraordinary appeals, the new law divides them into two categories – the appeals for revision and the appeals of opposition of the third party. All appeals other than these two categories belong to ordinary appeals.

Under the Code of Civil Procedure of Macao, the important conditions for lodging an ordinary appeal include the following:

1. That the value of interests in the case (also known as the amount of the claim in the case) exceeds the ceiling on the legal value of interests in an appeal to the court against which the relevant ordinary appeal is to be lodged;
2. That the judgment against which the relevant ordinary appeal is to be lodged is disadvantageous to the appellant; and
3. That the value of interests in the judgment exceeds half of the maximum legal value of interests in an appeal to the court against which the relevant ordinary appeal is to be lodged.

However, under certain circumstances, the Code of Civil Procedure of Macao permits the institution of an appeal regardless of the value of interests in the case concerned. Such circumstances are as follows:

1. The basis for lodging an appeal is that the rules of the right of jurisdiction have been violated, but the application of Clause 3 in Article 34 will not be affected. Or the basis for lodging an appeal is to contravene the determinate judgment on a case.
2. Where a judgment concerns the value of interests in the case, collateral matters or the preserving procedure, the basis for lodging an appeal against the judgment is that the value of interests exceeds the ceiling on the legal value of interests in an appeal to the court against which the appeal is to be lodged.
3. The relevant judgment already made is in violation of compulsory judicial interpretations.
4. The relevant judgment is a collegiate bench judgment made by the Court of Final Appeal, and the judgment contravenes a separate judgment made by the court on a same fundamental legal issue within the same scope of law, except for the circumstance that the collegiate bench judgment meets relevant compulsory judicial interpretations.
5. The relevant judgment is a collegiate bench judgment made by the Court of Appeal of the Macao Special Administrative Region, no ordinary appeal can be lodged against the judgment without proper justification related to the ceiling on the legal value of interests in an appeal to the court, and the judgment contravenes a separate judgment made by the court on a same fundamental legal issue within the same scope of law, except for the circumstance that the collegiate bench judgment meets relevant compulsory judicial interpretations.

The judgment itself permits any appeal against it. Besides, any appellant shall meet a set of important fundamental legal conditions before lodging an appeal, which are theoretically called the premises for lodging appeals. Namely, the premises for lodging appeals refer to the important conditions that must be met in requesting the Court of Appeal to review the issues of appeal. Such important conditions include the following:

1. The legality of the appellant⁽¹⁾: Specifically, the legality of the appellant refers to the condition that the appeal shall generally be lodged by the major losing party in a case, except for the institution of an appeal of opposition of the third party; or refers to the condition that the party having sustained direct and real losses as a result of a judgment can also lodge an appeal against the judgment even if the party is not a litigant in the relevant case or is only an assistant litigant in the relevant case.

2. Prescribed period for appeal: The prescribed period for lodging an appeal against a judgment shall be 10 days counted from the date of issuing the notification on the judgment. If the party concerned did not appear in court or if a notification can not be issued to the party concerned, the period for lodging an appeal against the judgment shall be counted from the day following the date when the relevant agency receives the file concerned.

3. Entrustment of attorneys: Under the Code of Civil Procedure of Macao, an attorney must be entrusted in any of the following cases or enforcement processes:

1. Case in which an ordinary appeal can be lodged;
2. Appeal cases and cases in which an appeal has been lodged to the court at a higher level;
3. An enforcement process in which the value of interests in the case concerned exceeds the ceiling on the legal value of interests in an appeal to the Court of Appeal; and
4. An enforcement process in which the value of interests in the case concerned exceeds the ceiling on the legal value of interests in an appeal to a lower court, and other processes in which anyone lodges an objection or which goes on in accordance with the steps of a proclaimed legal procedure.

4. Non-acceptance of relevant judgments: After a judgment is made, the litigant who has expressly or tacitly accepted the judgment may not lodge an appeal. Any act taken by the litigant that is incompatible to any will of appeal to express his or her acceptance of the judgment shall be viewed as his or her tacit acceptance of the judgment.

After comparing the 1961 Code of Civil Procedure of Portugal with the newly drafted Code of Civil Procedure of Macao, it is perceivable that many new changes have been introduced into the contents of appeal in the new law. The most typical of these new changes include the following:

(I) Expansion of the scope to accept appeals at the request of respondents: Under the Code of Civil Procedure of Macao, the role of the Court of Appeal has not only been strengthened, but has also been greatly modified. So, the Court of Appeal can not only adjudicate bases acceptable by the court of original trial (major bases leading to the making of judgments), but can also adjudicate some bases that are not acceptable by the court of original trial (bases that are not a major part of those leading to the making of judgments.)

Besides, respondents to an appeal can, in their statement (as a supplementary claim), contend against the annulment of a judgment; or dispute the judgment on certain contents of a relevant fact or matter (which is not disputed by the appellant), as a preventive measure in case the reason given by the appellant becomes tenable. Where there is a lack of necessary data for the adjudication of a relevant issue, the Court of Appeal shall send the file concerned back to the court of original trial, in order that the court making the relevant judgment can review it.

(II) Request of the Court of Appeal to review relevant facts or matters: Under the Code of Civil Procedure of Macao, where an appellant requests the Court of Appeal to review a relevant fact or matter, he or she shall specifically point out the part of the fact or matter which he or she considers as misjudged, and shall state that with the evidence specified in the file concerned, a different judgment can be made on the part of the fact or matter. Or else, the appeal will be rejected.

Under such a circumstance, if a wrong basis might have been used in the review of evidence, and audiovisual materials were produced as a record in the process of adjudication, the appellant shall specifically point out which part of the audiovisual materials should be used as the basis which he or she considers as correct. Or else, the appeal will be rejected. For the opposite party concerned, he or she shall state in the bill of defense against the appeal which part of the audiovisual materials can be used as evidence sufficient enough to deny the conclusion of the appellant. However, the Court of Appeal shall have the power to make independent investigations with its authority. Namely, the Court of Appeal will not be limited to any evidence indicated by the parties concerned and can launch investigations independently.

(III) Change of decisions of courts of original trial on facts or matters: Under the Code of Civil Procedure of Macao, in any of the following circumstances, the Court of Appeal shall change the judgment made by a lower court on a fact or matter:

1. That a dispute has arisen over a judgment made in accordance with evidentiary materials used as the basis for making the judgment on a fact or matter that are contained in the file concerned, and/or in accordance with statements or testimonies recorded as audiovisual materials;
2. That a different judgment can be made in accordance with evidentiary materials contained in the file concerned, and the judgment will not be overruled with other evidence; and
3. That the appellant concerned has submitted follow-up new documents, which will be sufficient enough to deny the evidence used as the basis for making the judgment.

(IV) Appeals to the Court of Appeal and the Court of Final Appeal: Under the Code of Civil Procedure of Macao, for a fact considered by courts as essential for obtaining evidence, if the Court of Final Appeal applies a system it considers as appropriate in accordance with existing law, the application of the system shall be viewed as a recognition of the fact. Besides, the Court of Final Appeal generally can not change the judgments made by the Court of Appeal on facts or matters, except for the circumstance that the latter has violated express provisions of law requiring the a specified means of proof be used to prove the existence of a fact, or that it has violated express provisions of law stipulating the probative force of a means of proof.

(V) Unification of jurisprudence: The unification of jurisprudence refers to the use by the following procedure of the means of judgment for solving differences occurring in the application of law, particularly in the interpretation of law:

1. To express a position (on issues of unification of jurisprudence), a written opinion shall be submitted to the prosecution for a judgment (within a period of 10 days).
2. In making a judgment, a vote shall be held on the written opinion, with each person casting one ballot, and a judgment on it can be passed with a majority vote.
3. Once passed, the judgment shall be published in the Macao Official Gazette.
4. Since its publication, the judgment will be of legally binding force to courts.
5. If the judgment is different from a separate compulsory judgment previously made, the new judgment shall be applicable and the previous one shall be annulled at the same time.

Obviously, many new, advanced approaches have been introduced into the new system of civil appeal prescribed by the Code of Civil Procedure of Macao. But, does it mean that the introduction of these new approaches will be sufficient enough to accelerate and simplify the process of adjudication in the region? Will these new approaches meet the requirement of the future development of Macao? These are questions yet to be answered in practice. However, what is the most important is that any new approaches must be supported by appropriate hardware. For the framework of the future judicial system of the Macao Special Administrative Region, its model and principles will make up another decisive factor. As far as this point is concerned, we will fortunately be witnesses in history⁽²⁾.

1. The legality of the appellant refers to the appropriate qualifications of the appellant. Namely, a person who appeals to a higher court has direct interests in the appeal case concerned. Once the reasons for an appeal are recognized as tenable, the appellant can gain interests from the appeal.
2. In consideration that there must be a process of coordination between the judicial system of Macao and the new changes in the civil procedure law, the government of Macao has decided that the system of appeal prescribed by the newly drafted Code of Civil Procedure of Macao will be applicable after December 20, 1999, namely after the establishment of a Court of Final Appeal in the Macao Special Administrative Region.