LEITE, M. F. M. C.; LEITE, Maria de Fátima Miranda Caldeira.
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.