Tutela Provisória (Processo Civil) - Resumo Completo

Summary

The script explains the concept of provisional guardianship within civil procedure law, detailing the differences between provisional and definitive guardianship. It explores various types of provisional measures, such as urgent and evidentiary guardianship, and how they are applied in legal proceedings. Key distinctions include their foundation in either summary or exhaustive cognition, their potential to generate material res judicata, and their impact on judicial outcomes. Additionally, the script outlines procedural aspects like the requirements for urgent relief, evidence for granting provisional measures, and the consequences of failing to comply with these legal mechanisms, including the possibility of stabilization and its limitations.

Takeaways

• 😀 Tutela Provisória (Provisional Protection) addresses process crises related to time constraints in civil procedure, providing interim measures when a final decision cannot be awaited.
• 😀 The main difference between provisional and definitive tutela lies in the stability and depth of cognition, with definitive tutela capable of producing material res judicata based on thorough cognition.
• 😀 Provisional tutela is based on a summary cognition, meaning it involves a superficial analysis of facts and evidence, without the potential to create res judicata.
• 😀 Provisional tutela can be either satisfactiva (satisfying a right) or cautelar (securing conditions for a future right), and it can also be antecedent (before the final request) or incidental (following the final request).
• 😀 Provisional tutela de urgência (emergency provisional protection) requires the demonstration of the likelihood of the right, danger of harm, and risk to the process's useful result.
• 😀 Tutela de evidência (evidentiary protection) does not require proof of danger but can be granted in cases of bad faith defense, clear abuse of rights, or in situations of repetitive judgments or binding precedents.
• 😀 In cases where the provisional tutela is granted, an appeal through agravo de instrumento (interlocutory appeal) is possible, and the effects may be temporary, but not suspended during the appeal.
• 😀 In the case of tutela antecipada (anticipatory protection), a party can request provisional protection before providing full evidence in cases requiring immediate attention.
• 😀 The request for provisional tutela can be simplified with an indication of the final request, and the value of the cause must account for both the provisional and final claims.
• 😀 Stabilization of provisional tutela effects does not equate to res judicata, meaning the decision’s effects are not final, and the losing party can still challenge the effects through an appeal or re-opening after two years.

Q & A

What is the purpose of tutela provisória in civil procedure?

Tutela provisória (provisional relief) aims to resolve temporary crises in a legal process, allowing a party to receive an urgent decision before the final judgment is made. It is designed to prevent harm or ensure a fair outcome while waiting for the final resolution.

What is the key distinction between tutela provisória and tutela definitiva?

The main distinction is that tutela definitiva results in *res judicata* (final judgment) and is based on thorough knowledge of facts and evidence, while tutela provisória is based on a summarized examination of facts and evidence, and does not result in *res judicata*.

What are the two main types of tutela provisória?

The two main types are: 1) *Satisfativa* (which fulfills a right directly) and 2) *Cautelar* (which secures conditions for fulfilling a right in the future).

Can tutela provisória be granted without a full examination of the facts?

Yes, tutela provisória is based on a summarized cognition, meaning it can be granted after a less detailed review of the facts and evidence compared to a definitive judgment.

What is the difference between tutela provisória de urgência and tutela provisória de evidência?

Tutela de urgência is granted when there is a risk of damage or failure to achieve a useful result in the process, while tutela de evidência is granted in situations where there is no need to prove such a risk, such as in cases of abuse of rights or deliberate delay tactics.

What does the CPC of 2015 say about provisional relief in urgent cases?

The CPC of 2015 unifies the legal framework for provisional relief, including both anticipatory relief (tutela antecipada) and precautionary measures (tutela cautelar), allowing for swift decisions in urgent cases to prevent harm or preserve the legal situation.

What are the requirements for granting tutela de urgência?

The requirements for granting tutela de urgência are: 1) probability of the right being claimed, 2) danger of damage, and 3) risk to the result of the process. In certain cases, a judge may also require a bond to ensure compliance.

What is the significance of 'stabilization' in the context of tutela provisória?

Stabilization refers to the condition where provisional relief remains in effect even if no further action is taken by the party requesting it, provided the decision is not contested. However, it is important to note that stabilization does not equate to *res judicata* (final judgment).

What happens if the party requesting provisional relief fails to file the main claim in time?

If the party fails to file the main claim within the required time frame (e.g., 30 days), the process may be dismissed without resolution on the merits, and the party may lose the benefit of provisional relief.

How is provisional relief applied in cases involving public administration?

Provisional relief can be granted against the public administration when certain conditions are met, such as when there is an abuse of rights or manifest intent to delay the process. However, it is still subject to the same legal framework as other types of provisional relief.