Aspectos distintivos do processo cautelar e tutela antecipar.

Abstract

Many are the species of put urgent measures to the disposition of the operators of the Right, for the Code of Civil Process. The typical said cautelares or nominadas, find specific regulation in the procedural legislation, that, at the same time, opens a fan of possibilities to the plaintiff, of choosing for another measured inominadas or atypical, whenever presents the requirements autorizadores of the concession of measure cautelar: the fumus boni iuris and the periculum in mora. It discourse on the process cautelar and it tutors her premature, observing the two forms for the which the State accomplishes the jurisdiction, in other words, for the cognition and for the execution, placing in this context the process cautelar as a third activity, that seeks to assure the success of the first two, so that the reintegration of the right for the road jurisdicional could be effective and tempestiva, would be necessary that the knowledge and the execution intervened instantaneous and concomitantemente, in way to pick the situation in fact just as came when the activity jurisdicional was invoked. But the fastness of the provision jurisdicional of merit is not possible, in practice, because the development of the indispensable activities for the declaration and the execution claims time. Then, the danger emerges of while the organs jurisdicionais operate, the situation in fact to lose temper in a such way, turning ineffective and illusory the provision (that can arrive too late, when the damage is already inevitable). It is also observed the principal differences and likeness among the two institutes, excelling for the fact that in the it tutors premature, the precariedade demands a special requirement: it can only be granted if the can be revoked any time, in an effective way. While the judgement of probability is minimum in the it tutors cautelar, he comes maximum in the it tutors premature and that not always it tutors her premature has as piece of furniture the urgency (CPC 273 I), because it can be granted when there is abuse of defense right or I manifest the defendant's purpose protelatorio (CPC 273 II), that nothing has to do with the urgency, but with the effectiveness of the process, as form of guaranteeing to the author the effects of the it tutors intended by the defendant's simple fact to be if using of the process with purpose protelatorio. Then because the Brazilian institute is singular.