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The ordonnances de référé: the future of the Brazilian civil procedure

Grant number: 14/14069-5
Support type:Scholarships abroad - Research Internship - Scientific Initiation
Effective date (Start): September 15, 2014
Effective date (End): January 14, 2015
Field of knowledge:Applied Social Sciences - Law
Principal Investigator:Camilo Zufelato
Grantee:Thaís Zeri Negrão
Supervisor abroad: Loïc Cadiet
Home Institution: Faculdade de Direito de Ribeirão Preto (FDRP). Universidade de São Paulo (USP). Ribeirão Preto , SP, Brazil
Local de pesquisa : Université Paris 1 Panthéon-Sorbonne, France  
Associated to the scholarship:14/00025-6 - Systematization of the "urgent procedures" in Brazilian civil procedure law: a comparison between the "precautionary procedure" and the "anticipatory procedure", BP.IC

Abstract

In consideration to the appropriated and relevants comments made, the research project has suffered changes to better achieve the researches goals. The goals and also the research itself were limited, to make it possible to finish this study in the term proposed. One of the most important conditions for the good functioning of the judicial system is the promptitude of the decisions taken by the judges. The Brazilian civil procedural law instituted two measures of quick intervention in the urgent cases: the "precautionary procedure" and the "anticipatory procedure". The "precautionary procedure’s goal is to protect the utility and the efficiency of the future main lawsuit. Therefore, it is possible to identify that this measure does not seek to promote the goals of a future decision, but to ensure that the rights claimed in the future wont be deteriorated, which would cause the loss of the lawsuits utility. Anticipating the effects of the sentence is the task of the "anticipatory procedure". Therefore, as the cognition applied by the judge in these cases is not deep, these two measures have a common characteristic: they both are temporary. A cause of that and other common characteristics, the Brazilian jurisprudence and doctrine had unified these two measures under the same term: "tutelas de urgência". And that term and systematization were adopted by the project for a New Code of Civil Procedure, proposed to the National Congress. In the French civil procedure, there are the "ordonnances de référé", which are decisions taken by a judge in urgent situations. To ask for a "référé" there is a condition: it must be present the urgent need of suspending another lawsuit. Therefore, these procedural instruments are also used in the urgent situations as the Brazilian "tutelas de urgência". Differently of the current Brazilian civil procedure, the French civil procedure has instituted only one measure for the urgent cases. However, the French measure requires an independent lawsuit: the "procédure de référé". This research goal is to better understand the systematization of temporary tutellesin the French law system to analyze under another perspective haw is it possible to unified "precautionary" and "anticipation" in the same category, using the "urgency" as common criteria. However, it is important to mention that this study no longer aims to promote a "legal transplant", because, like was said, there are limitations for that. Also, it would be impossible to do a complex comparative study within four months. But it is important to point out that this researches goals were limited, so they could be adapted to the results wished. (AU)