Antecipação de tutela, tutela cautelar e tutelas de evidência

Abstract

This essay aims to analyze and try to understand the urgent protection. We have seen that these are provided for in the 1988 Brazilian Constitution, to give effect to the process and ensure the legal and physical persons effective access to the judiciary. Then, in comparison with the international law, almost all countries guarantee the anticipation of guardianship, however one of the systems analysed, only Brazil and Portugal give this feature the status of systematic Institute in Civil procedure code. In anticipation of guardianship studied that was given to this Institute a lot of social responsibility, that is, in the same way that the law has to anticipate the effects, the same law orders the judge exercise caution in doing so is the other party guarantees that the measure will not be advanced, if there is a loss of irreparable harm to the plaintiff. In the chapter of the precautionary measures we have observed that this measure concerns to ensure the right to process, well-funded and effective, with a view to the possibility of irreparable injury or damage difficult to repair for the procedural activity. Later, we learn that very diverge and converge the anticipation of tutelage and guardianship order, as the first results from second, however are various institutes and the way of processing them is totally different, even at the time, considering that the second expires with the protection of procedural law. Another point discussed was the periculum in mora, fumus boni iuris and the unequivocal evidence and the likelihood of the allegations, the latest in practice, has the same function, however, scientific, are different for the reasons exposed in the workplace. Outside yet analyzed the general power of caution, or precautionary, inominadas, that allows the magistrate's action to ensure the smooth running of the process, to give him social efficiency slant, giving unto Caesar what is Caesar; and to God what is God 's. We feature a legal advance while the legislature recognized the fungibility between the early tutelage and guardianship order, however in the literal sense of the law the legislature said less than expected considering that although the doctrine and the jurisprudence accept the reverse situation, such prerogative should come from the law. Outside analysed the issues of custody of evidence, which in short is the acceptance of the judicial measure, without hearing the defendant, briefly examined his situation and outside after the reform of the code of Civil procedure