O fenômeno da urgência na tutela provisória do código de processo civil

Abstract

This research is about urgency as a presupposition for granting the provisional injunction dealt with by the CPC. Its objective is to analyze the treatment given to urgency in this type of protection, through a methodology that consists of content analysis and critical review of the specialized literature. The question that was posed as a research problem is the delimitation of urgency, as well as the investigation about the “urgent fact” that justifies the use of a differentiated technique, in order to identify whether this fact would be endogenous or exogenous to the process. From this, the fluidity and multidisciplinarity of the term urgency were found as main challenges, as well as the difficulty in providing an immediate protection that reconciles effectiveness, legal certainty, reasonable duration and other principles equally relevant to procedural science. As for the first challenge, the development of the theme reveals that the absence of a “legislated concept”, in fact, favors the provision of emergency protection. Regarding the provision of this type of guardianship in line with relevant values, some even of a constitutional nature, it was found that the provisional emergency guardianship is a suitable tool to promote such compatibility, since its structure was designed for this purpose. From this, it is possible to dimension the legal aspect of the matter and deal with the legislative efforts undertaken to protect it, given what the archetype offered by the CPC reveals itself as a result of the constitutional provision and brings with it several procedural repercussions. Furthermore, it is noted that, due to the breadth and complexity of the subject, there are two types of provisional urgent relief provided for by the legislator in the CPC, one precautionary and the other anticipatory, to which, despite the ontological difference a unity was conferred of treatment. Certainly, access to any of them requires the implementation of the presuppositions established by law, the demonstration of which must occur in the content of the process. From this arises the need to identify what the legislator considers urgent, a product that derives from descriptive parameters extracted from the legislation. In this order of ideas, it is clear that urgency has a typological content, which can be described, but not defined and, therefore, its concrete identification passes through criteria provided by law, through sparse predictions that reveal differentiated treatment