ÔNUS TEMPORAL, LÓGICA DO PROVÁVEL E DEVIDO PROCESSO LEGAL: O DILEMA ENTRE A NÃO ANTECIPAÇÃO SATISFATIVA DA TUTELA EM RAZÃO DE SEUS EFEITOS FÁTICOS IRREVERSÍVEIS E A EFETIVIDADE DA PRESTAÇÃO JURISDICIONAL

Abstract

The present academic study aims to objectively conceptualize and characterize the techniques of provisional tutelage of rights offered by the brazilian procedural law, and therefore particularize the antecipation of tutelage related to urgent matters, describing its requirements and mostly foccusing on the one contained in the article 300, paragraph 3º, of the 2015 civil procedures code (reversibility of factual effects from the anticipatory decision) due to its controversies about the prohibition of its request, albeit there are proven probability of entitlement and risk of danger. Such debate takes into account not Only the infraconstitutional legislation that estabilish the procedural law but also the inferences of the Due Process of Law principle inserted in the Federal Constitution, mainly about the commandments that Jurisdiction must always be effective and timely opportune to avoid the perishing of a material right that is being threatened or harmed, even if it is formally and protected in the future with a thorough verdict. Thus, after the adoption of interpretative techniques based off the Constitution and a deep study of legal literature, it is possible to conclude that, under penalty of assigning a supervenient, unfair and unbalanced chronological onus to the plaintiff that demonstrates its fumus boni juris and periculum in mora, the jurisdictional tutelage, as a form of attainment of the constitutional right to a fair process, must follow the logic of probability, mitigating the sheer supression of an anticipatory decision in the cases that there is no possibility of return to the status quo ante.