Aspectos atuais da tutela antecipada do artigo 273 do Código de Processo Civil brasileiro

Abstract

This dissertation examines some current aspects relative to the provisional remedy, specifically that one foreseen in the article 273 of the Civil Procedure Code. For so much, it starts from the concept, nature and species of court protections, analyzing, in a simple way, the differentiated court protection, until arriving to the species object of the study. After brief comments about the concept and the historical evolution of the provisional remedy, it dives superficially in the comparative law for, after synthesing the requirements and presuppositions of the institute in the Brazilian legal system, necessary to the understanding of the subject. Arriving to the apex, it discourses in a more detailed way on some points still reputed controversial and actual relative to the provisional remedy of the article 273 of the Civil Procedure Code: the legitimacy and the procedural moment for its solicitation and grant; the fungibility with the caution court protection; the type of responsability that elapses from its concession; the subject relative to the uncontroverted request; and that one due to its eventual unrevertibility. Besides, when analyzing the position of the magistrate in relation to the provisional remedy, tells on the possibility of the concession ex-officio, the existence of discretionarity or binding, as well as of a possible general power of anticipation. Concluding, it presents the problem that still involves the provisional remedy in face of Public Treasury, in relation to the remedies, the rescissory action and the querela nullitatis insanabilis. For obvious, it doesn t exhaust the matter and doesn t possess such pretension, once its conclusions, instead of ending the discussion, just intend to suggest the debate on that procedural institute, that is winning more space and importance, and, for consequence, demands a deeper and complex examination by the law experts