A IRREVERSIBILIDADE DE MÃO-DUPLA EM TUTELAS PROVISÓRIAS DE URGÊNCIA E A EXCEPCIONALIDADE DA SUA CONCESSÃO EM SEDE LIMINAR

Abstract

Anticipation of relief, as a technique, provides litigants with the certainty that when they resort to the Judiciary seeking to resolve a particular dispute, the element of time, often obstructive to judicial relief, will not, at least temporarily, be a major impediment to the enjoyment of their rights. However, for this relief to be granted in advance, certain requirements must be met, and others must be absent, such as the irreversibility of effects as set forth in § 3 of Article 300 of the CPC. Within the scope of this provision, a significant controversy arises: the so-called 'reciprocal irreversibility,' which involves a conflict between the plaintiff's periculum in mora and the defendant's inverse periculum in mora. Several renowned legais scholars have dedicated themselves to studying this phenomenon, seeking to define all the problems that often arise in practical cases. Simultaneously, the STJ has also long attempted to propose means to reconcile these periculums in mora. Despite all of this, the conclusion reached is the impossibility of proposing any a priori parameters for such cases because, in the end, the solution will invariably involve a balancing of the conflicting values and the sacrifice of one of them. In this regard, the best alternative to be considered for such cases is the use of 'prior justification' as provided for in § 2 of Article 300 of the CPC. However, it should be noted that this is not the right terminology to be employed for the proposed solution. The legislator would have done better if reference had been made to a 'prior statement/defense' by the defendant. Through this tool, the judicial body will be provided with greater certainty regarding its decision and a broader legal security for the entire legal community. Despite time being a relevant factor in the anticipation of relief, respect for the fundamental rights of litigants must also be ensured in the same manner.