A fungibilidade das tutelas de urgência: uma análise comparativa entre o Código de Processo Civil em vigor (1973) e o projeto do novo Código de Processo.

Abstract

In the area of C\v\\ Procedure a question raised as an agenda of repeated discussion and controversy is related to the possibility of applying the principle of fungibility between the prudential supervision and early relief to the code of civil procedure today. The presented work brings from the historical origin of guardianships which addressed the same comparison with foreign law, including specifically highlighted the Portuguese law, Italian law and Portuguese law, highlighting the main differences between them, defines the responsibility and precautionary early relief by ranking its entirety, it was pointed out the basic differences and similarities between them, refers to the general power to caution that held by the judge, who can use if the principle of fungibility for certain cases, with the proviso that these measures emergency should be granted only if all the conditions required, ie the precautionary protections are: periculum in arrears and the prima facie juris, whereas in guardianships anticipated are: the existence of clear evidence, the presence of verrossimilhanga, not existence of the danger of irreversibility of the appointment in advance or difficult to repair, or the abuse of rights of defense, or manifest postponing purpose of the defendant. This research is used to document research in doctrinal works, specializing in the legal field of civil procedure, apply the deductive method and systematic exposition of the theme. The aim of this study was the detailed study of the questions on this topic, as well as conducting a comparative analysis of major changes in the bill to the current code of civil procedure, checking the concept of guardianship of urgency, and without pretending to end the controversy arising from the theme seeks to contribute to and enrich it with arguments based on doctrine and jurisprudence in Brazil, always making comparisons with the new system and innovations brought about by the bill in the pipeline, which will give rise to new procedural code civil.