Tutela antecipada no âmbito recursal

• Autor(a) principal: Queiroz, Laise Beatriz Trindade da Silva
• Data de Publicação: 2013
• Tipo de documento: Trabalho de conclusão de curso
• Idioma: por
• Título da fonte: Biblioteca Digital de Teses e Dissertações da PUC_SP
• Texto Completo: https://repositorio.pucsp.br/jspui/handle/handle/34652
• topic: CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO::DIREITO PUBLICO::DIREITO PROCESSUAL CIVIL; Tutela antecipada; Tutelas de urgência; Efetividade e celeridade; Readequação do sistema recursal; Antecipação dos efeitos da tutela recursal; Early Guardianship; Guardianship of urgency; Effectiveness and speed; Readjustment of the appeal system; Anticipating the effects of guardianship appeal

The introduction of injunctive relief in the Brazilian legal system gave new profile to adjudication and brought numerous reflexes under appeal, which constitute the main topic addressed in this work. The search for the expansion of access roads to justice, procedural speed and effectiveness of judicial protection are also objectives to be achieved under appeal. For this reason, after the consecration of the injunction, it was necessary to readjust the appeal system in order that the ideals of inafastabilidade of jurisdiction reasonable duration of the process, adequacy and effectiveness of judicial protection were equally prestigious under appeal. We demonstrate that the subject of appellate anticipation of guardianship is extremely relevant in the Brazilian civil procedure regarding mainly for emergencies, since there are cases in which the trial judge denies a preliminary injunction based on risk of irreparable harm and the simple future success of the appeal against the denial may become useless. We brought some notes about the rules laid down in Articles 558 and 527, section III, with wording given by Law 9.139/1995 and 10.352/2001 respectively, which allow the granting suspensive effect of the interlocutory appeal, allowing the rapporteur grant from soon, in anticipation of guardianship, the measure denied by the court a quo. We analyze, in many respects, the use of the legal protection under the Courts and the grant of certain powers to the rapporteur of the resource means being aware of the need to preserve the appellate phase of the main objectives of the reforms promoted in the procedural system, so that the same reasons which authorize the suspension of the contested decision to the eventual success of the appeal will not be useless, justify that, first, give up the practical result of its provision. Finally, have raised several interesting questions about the use of injunctive relief under appeal, theme quite divergent doctrine when it comes primarily from an emergency situation, and concluded that the most consistent with the system is summarized in the following premises: ) adopt a systematic and teleological, in tune with the constitutional model of the process, so that there is an interchange standards between species of guardianships emergency (interim and anticipated), b) choose an instrument that ensures Recognize and instrumentality the effectiveness, the reasonable duration of the process and access to fair legal system, and c) apply the principle of fungibility means