TUTELA PROVISÓRIA NO CÓDIGO DE PROCESSO CIVIL BRASILEIRO

Abstract

This article aims to analyze the interim protection, which in the Brazilian Code of Civil Procedure (Law nº 13.105/2015), began to compose Book V of the respective General Part. The systematization conveyed by the legislator brought together in one place the interim, injunctive, preventive and advance protection measure, as well as the protection of evidence. Temporariness is a term that became gender and ended up encompassing all the previously indicated protections. Yet, it is worthwhile to emphasize that preventive measures are marked to be temporary, that they are valid while necessary to the process, while the provisional injunctive protections have a provisional character, in the sense that it remains until the definitive comes. The law treats both as provisional. The provisional protection of anticipated urgency differs from the protection of evidence, since in this case the question of urgency is unessential, although nothing can prevent it from happening. Even if protective measures have specific rules, they do not lose the central thread of temporariness, in a broad sense. In this text, the issue of prior advance protection and its eventual stabilization has been substantiated, bringing to the debate the doctrinal and jurisprudential controversy about the moment in which the mentioned stabilization occurs, which is not confused with res judicata. This study has sought to analyze the phenomenon of provisional protection from the perspective of Pontes de Miranda, specifically, the opening of the case of action and preclusive effectiveness of the judged thing. Based on this premise, we have sought to bring to the academic debate technical means capable of understanding how the provisional protection in Brazilian legislation remained positive. For this purpose, this article used the deductive method, based on the documentary analysis of positive law texts and specialized doctrine to bring better basis to the research carried out. It has been sought to systematize the various facets that the emergency and evidence protections have, stressing how they have become instruments skilled of being factors of implementation of a timely and effective judicial protection, materializing the access to justice in a reasonable duration of the process, thus equalizing the burden of time in the process.