It is the responsibility of the State to provide judicial protection, therefore, it must not only guarantee the observance of constitutional principles, such as that of the unfeasibility of jurisdiction, the adversary, and the broad defense, legal security, due legal process, legal security, and reasonable duration of process, but also to ensure the effectiveness of jurisdictional provision and the substantive law brought to the Judiciary, so that the protection is delivered to the winning party in time and in conditions suitable for the enjoyment of the good of life intended.
In view of this, it was necessary to adopt technical measures capable of guaranteeing the adequate and effective provision of judicial protection, combined with speed. Thus, interim protection was conceived.
With the advent of the New Code of Civil Procedure in 2015, the then injunctive relief (precautionary and advance) and the evidence protection were brought together in a single genre, namely, the interim protection.
Cassio Scarpinella Bueno defines interim protection “[…] as the set of techniques that allows the magistrate, in the presence of certain assumptions that gravitate around the presence of ‘urgency’ or ‘evidence’, to provide judicial protection, antecedently or incidentally, based on an unstable (therefore provisional) decision able to ensure and/or satisfy, from the outset, the plaintiff’s claim, even in a preliminary manner, that is, without the defendant’s prior hearing […] ”[1].
According to article 294 of the Code of Civil Procedure, interim protection can be based on urgency or evidence, characteristics that even give name to the types of interim protection.
Injunctive relief, which is subdivided into anticipated/satisfactory and precautionary, is linked, as the expression itself implies, to an urgent situation. If it is related to the risk of perishing the right sought by the interested party, it is before the provisional interim protection. If the urgent situation is linked to an immediate need, under penalty of frustrating the object of the dispute, this is satisfactory interim protection.
The protection of evidence, in turn, is that based on the quality of evidence capable of, by itself, demonstrating the high probability that the claimant for the measure will be entitled to it. Incidentally, the protection of evidence, as prescribed in art. 311 of the Code of Civil Procedure, will be granted regardless of the demonstration of danger of damage or risk to the useful result of the process.
The advance relief required in advance is one of the greatest innovations brought by the Code of Civil Procedure of 2015.
Before CPC/15, there was no provision in the Brazilian legal system regarding the possibility of requesting injunctive relief of a satisfactory nature before the submission of the main application itself.
This time, with a view to speed up the procedure, in cases where the urgency is contemporary to the filing of the action, the plaintiff may then present a simple initial petition, demonstrating, obviously, the fulfillment of the authorizing requirements, aiming solely at the granting of advance relief.
Once the advance relief has been granted in advance, the claimant shall, in the exact terms of item I §1 art. 303 of the new Code of Civil Procedure, “[…] amend the initial petition, with the complementation of its arguments, the addition of new documents and the confirmation of the request for final protection, in fifteen (15) days or in another greater period than the judge determines; […]”. The absence of an amendment to the initial petition will result in the extinction of the process without resolution of the merits (art. 303, §1, CPC); as a consequence, the granted injunctive relief will lose its effectiveness.
Simultaneously with the deadline for the amendment of initial petition, the defendant will be served with a summons, including summons to attend the conciliation and mediation hearing. If there is no self-composition at the hearing, the period for contestation will begin, under the terms of art. 355, Item I of the Code of Civil Procedure.
In the meantime, it is worth mentioning that article 304, caput, of the Code of Civil Procedure establishes that, in the absence of an appeal, the previous advance protection will become stable, and the parties may, within two (02) years after the summons, seek its reform or invalidation, as provided for in art. 304, §5 of the same legal diploma.
Thus, it is possible to conclude that for there to be stabilization of the advance relief, it is necessary to fill in four cumulative assumptions. They are: “[…] (a) that the judge has granted the request for advance protection (rectius, interim protection of satisfactory urgency), required in an antecedent and autonomous nature; (b) the author has expressly requested the application of such a technique; (c) that the concessive decision has been issued preliminarily, without prior hearing of the other side; and (d) that the defendant, communicated of the decision, has not lodged the appropriate appeal […]”[2]. And it is in relation to this last assumption that there is the greatest divergence in what concerns the stabilization of the advance relief granted in an antecedent character.
Following the literality of said legal provision, only if the defendant party does not appeal when notified of the concessive decision of the advance application, the advance of protection is stabilized. And the appeal, in this case, would be the interlocutory appeal (art. 1.015, I, CPC).
However, there are cases in which the defendant, despite not filing the appropriate appeal, presents challenge, that is, demonstrates refusal to accept as to the injunctive relief. For these cases, would the advance relief be stabilized?
The answer is that there is no consensus in the doctrine.
On the one hand, professors Teresa Arruda Alvim Wambier, Maria Lúcia Lins Conceição, Leonardo Ferres da Silva Ribeiro, and Rogerio Licastro Torres de Melo, affirm that “[…] any form of opposition (e.g., contestation, counterclaim) must have prerogative to avoid the extinction of the process. Only the resistance, the manifestation of the defendant’s non-conformity, which can happen not only through the appeal […]”[3].
In the same sense, Fredie Didier Jr., Paula Sarno Braga, and Rafael Alexandria de Oliveira maintain that “[…] although art. 304 of CPC talk only about not filing an appeal, the inertia that is required for the stabilization of advance relief is beyond that: it is necessary that the defendant did not use an appeal or any other means of challenging the decision (e.g.: security suspension or request for reconsideration, provided that they are submitted within the time available to the party to appeal) […].”[4]
In the opposite sense, Humberto Theodoro Júnior argues that “[…] in the system established by the Code, therefore, for the stabilization of satisfactory protection to occur, it is enough that the defendant does not appeal against the decision that granted it (art. 304, caput). […]”[5].
In the same vein, the teaching of Arruda Alvim: “[…] in principle the wording of the provision is quite clear, and a restrictive interpretation seems to be adequate to prevent other manifestations by the defendant that mean the breaking of inertia and the impugnation of the decision granting the relief can prevent the extinction of the process. […]”[6]
And this dissonance is also present in the case law. The Superior Court of Justice has already ruled on the subject two (02) times and in different manners.
On the occasion of the judgment of Special Appeal No. 1,760,966/SP, dated 12/04/2018, the Third Panel of the STJ manifested itself by the broad interpretation of the legal provision under review, stating that “[…] if the party does not appeal against an interlocutory appeal against the decision that deferred the injunctive relief required in the past, but, for example, it anticipates and presents a challenge refuting the arguments brought in the initial and pleading the groundlessness of the request, evidently will not occur the stabilization of relief […] ”[7] .
However, at the end of 2019, the First Panel, on trial by majority, held that “[…] the argument that stability would only be achieved when the defendant party did not present any resistance does not resist, because, in addition to characterize the widening of the case foreseen for this purpose, could lead to the emptying of that institute and the failure to observe another that is already deeply rooted in the legal culture, namely, the preclusion […]”[8].
As noted, there are different positions adopted by the doctrine regarding the technical interpretation of stabilization. On the other hand, due to the scarce case law on the subject, only with the concrete use of the stabilization institute can it be possible to reach at a conclusive position on its permanence.
[1]BUENO, Cassio Scarpinella. Manual de direito processual civil. 4.ed. São Paulo: Saraiva, 2018, p. 283.
[2] SICA, Heitor Vitor Mendonça. Doze problemas e onze soluções quanto à chamada “estabilização da tutela antecipada”. In: DIDIER JR., Fredie (Coord. geral); MACÊDO, Lucas Buril de; PEIXOTO, Ravi; FREIRE, Alexandre (Orgs). Procedimentos especiais, tutela provisória e direito transitório. Coleção Novo CPC – doutrina selecionada, v. 4. 2. ed. Salvador: JusPODIVM, 2016, p. 236.
[3] WAMBIER, Teresa Arruda Alvim; CONCEIÇÃO, Maria Lúcia Lins; RIBEIRO, Leonardo Ferres da Silva; MELLO, Rogerio Licastro Torres de. Primeiros comentários ao novo Código de Processo Civil: artigo por artigo. 2.ed. São Paulo: RT, 2016, p.565
[4] DIDIER JUNIOR, Fredie; BRAGA, Paula Sarno; OLIVEIRA, Rafael Alexandria de. Curso de Direito Processual Civil, 14 ed. Salvador: Jus Podivm, 2019, vol. 2, p. 735-737
[5] THEODORO JUNIOR, Humberto. Curso de Direito Processual Civil, Volume I: teoria geral do direito processual civil, processo de conhecimento, procedimento comum, 60ª ed. Rio de Janeiro: Forense: 2019, p. 686/687
[6] ALVIM, Arruda. Manual de direito processual civil: Teoria Geral do Processo, Processo de Conhecimento, Recursos, Precedentes. 18ª ed. rev., atual. e ampl. – São Paulo: Thomson Reuters Brasil, 2019, p. 768
[7] REsp 1760966/SP, Rel. Minister MARCO AURÉLIO BELLIZZE, THIRD PANEL, tried on 12/04/2018, DJe 12/07/2018
[8] REsp 1797365/RS, Rel. Minister SÉRGIO KUKINA, Report for Judgment Minister REGINA HELENA COSTA, FIRST PANEL, tried on 10/3/2019, DJe 10/22/2019
Autor: Daniel Feitosa Naruto • email: daniel.naruto@ernestoborges.com.br
