O dever objetivo de indenizar oriundo da execução de decisões judiciais provisórias.

Abstract

It's known the seek for Justice is an inner right to all those ones who, in face of a resisted pretension, invokes State jurisdictional tutelage, in order to confirm or definitely refute his interest. Otherwise, such prerogative cannot be practiced by an unlimited way, because law provides litigant with a powerful tool, the lawsuit, but in the other hand imposes to him some onuses, such as the duty to pay for process expenses and lawyer fees, once he has lost his demand. So, it's possible to check that the defeat principle is able to mitigate free access to Justice, which, despite of being still preserved what concerns its practice, can provide to the author part the duty of, if his intends were unaccepted, reimburse the expenses resultant from the lawsuit he started. In this case, it's important to emphasize the obligation to indemnify that is imposed on the execution creditor of measures granted before definitive meritorious sentence, specifically in the hypothesis of temporary sentence executions (article 508, CPC), of precautionary measures (article 811, CPC) and anticipate tutorage (article 273, CPC). The civilian responsibility, in these cases, works through an objective way, because it is independent of the litigant behavior perquisition (intentional or non intentional), resulting from the law itself which, in occasion of the risk caused by the execution of measures conceded through a mere probabilistic judgment, protects the part that, by legal determination, cannot escape from being in the demand. This way, according to the Justice nearest interpretation, that one who uses the lawsuit must pay its concerning expenses, restoring the damages occasionally provoked in the other part because of temporary measures which, in the end, have been changed or refused. It's imperative to underline that this condition does not affect the Justiciary obligation in manifest itself about litigations that come to it, neither does the interested part in use this procedure for conflicts solution, but this part must subordinate itself to Judiciary logic and fair consequences. So far, this research major purpose is to verify the prevalence of the understanding according to which objective duty to indemnify by the temporary executions execution creditor is imposed, since the demand winner litigant does not suffer any loss. Such understanding results from our Civilian Process Statue express provision, which is totally according to Brazilian Constitution.