With the enactment of the New Code of Civil Procedure (NCPC), some legal concepts such as provisional remedies have undergone significant changes, and mastering them is certainly essential for professionals in the field.
It is important to clarify at the outset that with the NCPC (2015), provisional remedies are now expressly provided for in articles 294 to 311.
Secondly, assuming that provisional remedies function as a procedural mechanism linked to the satisfaction and guarantee of a claimed right, their importance to legal professionals is obvious.
What are provisional injunctions?
In summary, provisional injunctions are judicial orders granted on a non-definitive basis , that is, granted before a final decision in the process that protects against the threat of harm.
According to Alvim's doctrine:
"Provisional relief addresses the need to overcome obstacles to the proper delivery of justice, namely, the duration and cost of the process."
First of all, Article 294 of the New Code of Civil Procedure , which introduces the provision for provisional remedies, begins by expressing its dichotomous nature, as we will see that provisional remedies are divided into both urgent remedies and remedies based on evidence.
What are the types of provisional injunctions?
In summary, urgent relief and relief based on evidence are types of provisional relief. It should be noted that the former is characterized by the urgency for granting the measure and is further divided into anticipatory urgent relief and precautionary relief.
- Na preliminary injunctionInitially, what happens is... advancement of the substantive right itself as requested by the party, thereby achieving a judicial order that would normally only be granted at the end of the process.
Similarly, Alvim expounds in doctrine:
"Through preliminary injunctions, effects that would normally only be felt upon the pronouncement of the judgment are brought to an earlier stage of the process. Therefore, the preliminary injunction is satisfactory in that the beneficiary begins to enjoy, immediately, effects that they could normally only enjoy upon a favorable judgment on the merits."
- Around the same time, tutela de urgência cautelar It has a purpose. instrumentalBecause, in a simple way, it seeks to ensure that the process, in the end, is delivered under the conditions requested by the party in court.
Certainly, one example is the case of attachment, where the party seeking precautionary measures fears that the debtor will improperly dispose of assets and that the final decision on the legal claim will not be beneficial to them.
"Precautionary measures, therefore, directly safeguard the effectiveness of the decision to be rendered regarding the main claim, which, in itself, runs the risk of not being useful in practice. Through precautionary measures, the aim is to maintain a certain factual situation, so that the final judgment does not become useless to the winner" (Alvim).
It is worth noting that despite these peculiarities, both preliminary injunctions and precautionary injunctions can be granted in an antecedent or incidental manner, as provided for in the sole paragraph of article 294 of the NCPC (New Code of Civil Procedure), that is, it may be requested in the initial petition or during the course of the proceedings, provided that the requirements are met.
- Secondly, the evidence-based protection, the second type of provisional guardianship, as provided for in article 311 of NCPC, It does not require demonstrating the danger of harm or risk to the useful outcome of the process.
According to the illustrious doctrine of Lamy :
"The protection of evidence is the type of provisional protection that satisfies the effects of judicial protection without the risk of harm, but only a very high probability of the right being upheld, as provided for by law. It is not based on the urgency of the case, but rather on the evidence of the legal system."
After all, as the name itself suggests, the likelihood of the right being upheld is evident.
Provisional injunctions: when can they be granted?
Above all, the requirements for granting provisional injunctions are set forth in Article 300 of the NCPC ( New Code of Civil Procedure ).
Firstly, it stipulates that provisional urgent injunctions may be granted when there are elements indicating the likelihood of the right (Fumus Boni Iuris) and the danger of harm or of the useful outcome of the process (Periculum In Mora).
Next, article 311 provides that provisional remedies , since they do not require proof of danger of harm or risk to the useful outcome of the process, may be granted when:
"I - the abuse of the right of defense or the manifest dilatory purpose of the party is characterized ;
II – the factual allegations can only be proven through documentation and there is a legal precedent established in the judgment of repetitive cases or in a binding summary ;
III – if it concerns a claim for specific performance based on adequate documentary proof of the deposit contract, in which case an order for the delivery of the object held in custody will be issued, under penalty of a fine;
IV – the initial petition is accompanied by sufficient documentary evidence of the facts constituting the plaintiff's right, which the defendant does not oppose with evidence capable of generating reasonable doubt.
Provisional injunctions: what's new in the new Brazilian Code of Civil Procedure?
Certainly, it is worth highlighting the novelty contained in article 304 of the NCPC , which provides for the stability of provisional relief in cases where the opposing party does not present an objection to the granting of the relief.
This also means that after preliminary relief is granted, there is a possibility that the effects of this relief will become stable, depending on the stance taken by whoever has standing to appeal the granting of the relief.
However, it is worth mentioning here that, with regard to the stability of the effects of preliminary injunctions, this situation cannot be extended to precautionary measures.
Final considerations on provisional injunctions.
In short, it is well known that the New Code of Civil Procedure brought changes to many procedural institutions, including that of provisional relief.
This is because, as demonstrated, provisional remedies are tools that are directly linked to the satisfaction and guarantee of a right claimed by a party, preventing the delay of the entire judicial process from harming that right.
The consequence of this is the effectiveness of the process.
In conclusion, it is essential to master the key aspects of this legal concept, as it is a topic that directly influences the skills of professionals who excel in civil procedure.
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