A mitigação do óbice da irreversibilidade para a efetivação da decisão judicial: uma análise doutrinária e jurisprudencial dos arts. 300, § 3º, e 521, parágrafo único, do CPC

Abstract

Present assignment aims to analyze the effectiveness of judicial decision’s preservation – having both interlocutory relief and provisional enforcement under scope – in cases with irreversible effects in prospect and with the party being unable to provide a caution, as legally required. In this regard, it intends to test the hypothesis that the wideness of scope of principles susceptible to be considered – when analyzing the irreversibility and its correlated possibility of waiving the caution – makes it hard to find and adopt jurisprudential solutions a priori, turning the appreciation of circumstances of the specific case the core moment of the process of seeking for solutions. To accomplish this, firstly, an analysis of the requirements of the Civil procedure Code regarding reversible effects is presented, as well as the problem of the maintenance of the caution’s demand in provisional enforcement – even in the hypothesis where the Code would waive it – under the probability of facing irreversible effects. Furthermore, the paper seeks to deepen the doctrinal understanding regarding the need for mitigation of the legal provision, through the presentation of theoretical cases and the gathering of criteria discussed in legal literature on the subject, which should be considered by judges in related judicial decisions. Lastly, it focuses on cases examined by the Court of Justice of Minas Gerais, specially searching for the eventual configuration of jurisprudential positions capable of providing guidelines to be considered by judges in the analysis of other similar cases.