Tutela provisória na sentença e retirada do efeito suspensivo da apelação: técnica de incremento da efetividade do processo

Abstract

Starting from the conception of civil proceedings as an instrument of judicial protection of rights and the existence of a fundamental right to effective protection, and identifying in the automatic suspensive effect of the appeal an obstacle to effectiveness, the article deals with the removal of this effect by the sentence that confirms, grants or revokes preliminary relief (Code of Civil Procedure, art. 1.012, §1, V). The mechanism is dealt with in the light of the conflict between effectiveness, hurt by the delay in exhausting remedies with suspensive effect, and legal certainty, threatened by the immediate enforceability of first-degree court decisions. We propose a systematization for the application of the preliminary relief technique in the sentence, with the objective of reconciling the mentioned guarantees, improving judicial protection and reducing the damages of its natural delay.