Systematization of the urgent procedures in Brazilian civil procedure law: a comparison between the precautionary procedure and the anticipatory procedure

• Grant number: 14/00025-6
• Support type: Scholarships in Brazil - Scientific Initiation
• Effective date (Start): April 01, 2014
• Effective date (End): August 11, 2015
• Field of knowledge: Applied Social Sciences - Law - Private Law
• Principal researcher: Camilo Zufelato
• Grantee: Thaís Zeri Negrão
• Home Institution: Faculdade de Direito de Ribeirão Preto (FDRP). Universidade de São Paulo (USP). Ribeirão Preto , SP, Brazil
• Associated scholarship(s): 14/14069-5 - The ordonnances de référé: the future of the Brazilian civil procedure, BE.EP.IC

Abstract

As the State has the power and function to create substantive law, it must also assure that these laws are concretely enforced, which therefore, is a jurisdictional function of the State, in substitution of legal self-enforcement, which was prohibited by the State itself. That way, through procedure, the State attempts to effectuate the rights that are assured by substantive law. The efficiency of this jurisdictional function relates not only to the development of the cause of action used, but also, and most importantly, to the results achieved. Therefore, it is necessary that a cause of action be tailored to the requirements of the substantive law. Thus, in cases where urgency is detected, so that the jurisdiction is applied correctly, the Brazilian procedural system has found a solution named "urgent procedures." This means that, in cases where the wait for the final judgment represents a threat to the efficiency of the system, certain immediate actions must be taken.It is possible to identify two distinct types of "urgent procedures": the precautionary and the anticipatory. In practice, however, in certain cases, the distinction between these two procedures is not clear, which can lead to confusion between them.For these cases, in order to avoid any prejudice to those who avail themselves of the judicial system, the Brazilian legislature added Paragraph 7 to Article 273 of the Civil Procedure Code, which provides for the fungibility of these procedures. Therefore, because of the difficulties found in practice, a systematization of these procedures has been developed, unifying them as the "urgent procedures", which are the opposite of the "evidence procedures." This classification has been adopted by the Project of New Civil Procedure Code, which is awaiting approval by the National Congress.The goal of this research paper is to understand this systematization by analyzing Brazilian legal doctrines and jurisprudence, as well as foreign law. The proposal of the study is justified because these two procedures have their own requirements, which are provided by the Civil Procedure Code, including their fungibility, which makes one question whether this new systematization will bring benefits to the Brazilian civil procedural system.