Tutela provisória recursal no CPC/2015: origem, evolução, pressupostos e tentativa de sistematização

Abstract

Civil Procedure's traditional vision, in the civil law system, establishes a clear division between the "processo de conhecimento" (i.e., the legal procedure upon which a ruling will be issued) and the "processo de execução" (i.e., a judicial collection procedure), hence the principle of nulla executio sine titulo. On the other hand, a more liberal approach provides for effective judicial protection at any stage of the legal proceedings, regardless of res judicata (i.e., a case in which a judgment is no longer subject to appeal). This is the backdrop under which this paper developed. Its main purpose is an attempt to organize the theme, so that it can be presented as a valuable mean to render the law effective. Specifically, it aims to show that, respecting certain restrictions, the "tutela provisória cautelar" or "tutela antecipatória" (different types of interim measure), based either in urgence or preliminary evidence, may and shall be granted by any court, provided that the adjudicator take into account the likelihood of a final judgment in favor of the requesting party, the periculum in mora and the risk of irreversibility of the measure adopted against the party against enforcement is sought. It will attempt to demonstrate that the adjudicator may and shall adopt a more liberal approach with respect to rules that may preclude the effectiveness of the interim measure, such as the "tutela provisória de urgência no agravo interno" (a type of interim measure sought before a panel court, upon a decision rendered by a sole member of the panel), which should be not decided by the a sole judge, but rather en banc. In terms of method, the study is based on case law, statutory law and scholarly writing, discussing real cases and hypothetical situations. The concept, classification, evolution, requirements and interpretation of "tutela jurisdicional", "tutela provisória" and the effects upon which an appeal may be received (and also the interplay between these legal figures) will be addressed under the light of the 2015 Brazilian Code of Civil Procedure and the 1988 Brazilian Constitution