Carta Forense

In the previous work, starting with the topic of jurisdiction (article 299), we pointed out that it is connected to another aspect of the general discipline of the temporary relief: that it be demanded on a preceding or incidental basis (article 294). This then led to the loss of autonomy of the provisional proceeding. And, as we said, all of this entails the examination of the urgent relief filed on a preceding basis: first the interlocutory relief, pursuant to articles 303 and following articles; then the provisional relief, pursuant to  articles 305 and following articles.

The pleading of an interlocutory relief grounded on urgency filed at the start of the proceeding  was a known fact of the CPC 1973 system  (with the amendments that, throughout time, were incorporated into article 273) – although a “preceding” nature was not something  mentioned. And it was not even the case of mentioning it, since there was no separation of elements – or of moments – that could logically justify a “preceding” fact; which can only exist if, later, there is something that is “subsequent” thereto. The pleading was a single one: of the “final” relief and of the respective preliminary relief. Therefore, if nothing had been regulated by the CPC of 2015 in this sense, everything would continue as before.

So then, what would have justified the changes in this regard and what is the respective scope?

Remember that the situation taken by Lawmakers is that of an interlocutory relief based on urgency. This is why article 303 starts by considering the case of urgency being “contemporary to the filing of the claim” – which, I repeat, is an already known situation in the CPC 1973 system. What is new, then, is an attenuation of the plaintiff’s burden of claim: it can be limited to the  filing of an interlocutory relief accompanied by the mere “indication of the pleading of a final relief”, translated in the “exposure of the dispute” (terminology that reminds us of the one in article 801, III of the CPC of 1973), of the right  “sought” and of the “risk of damage”. Hence the separation of elements or of moments, which grants this pleading, in the CPC of 2015, a “preceding” nature: upon the granting of an interlocutory relief (of urgency), the law then provides an opportunity for the plaintiff to “add” to the initial complaint any complement of the cause of action (of its “argumentation” stated the law in an imperfect manner); with the appearance of new evidentiary elements (“new documents”); and with the “confirmation” of the pleading of a “final” relief  (article 303, § 1, I).

That is to say: although the autonomy of the provisional proceeding has ended, Lawmakers of 2015 have insisted on two filing moments for one of the cases of urgent relief: a “preceding” fact, grounded on elements  – claim and evidence – perhaps less consistent, adjusted to a superficial cognition, adequate for the moment of urgency; and one relative to the “final relief”. There is no  “principal action”, let alone another proceeding to which an equal qualification could be attributed. There is no new payment of a judicial fee (article 303, § 3), and the amount in dispute prevails, after all, that is the one relative to the “final relief”. However, the method created by the Lawmakers almost gets there: if the plaintiff does not exempt himself from the burden relative to the second pleading moment – does not file the “principal action”, echoes from the past would say that – the consequence is the dismissal of the proceeding without prejudice, with the consequent loss of  effectiveness of the previously granted urgency measure. Any similarity between the rule in article 808, I, of CPC of 1973 is no mere coincidence… Moreover: if the judge views that it is not the case of granting the urgent relief, he will insist that the plaintiff amend – before, it used to be to “add to” – the initial complaint, presumably in order to bring the elements that add consistency to the pleading of the “final relief”.

The situation is somewhat curious: Lawmakers were concerned that urgency may adversely affect the initial complaint  – by removing from the plaintiff the possibility of bringing better elements related to the claim and to evidence; and, due to such verification, even after having ended up with the autonomy of the provisional proceeding, they have brought to the field of interlocutory relief (of urgency) a dichotomy that, in relation thereto, did not exist in the CPC of 1973; and which was precisely one of the features of the provisional relief…

Another verification: when recognizing that the  plaintiff may be limited to the “indication of the pleading of a final relief”, with the mere “exposure of the dispute, of the right sought, and of the risk of damage”, Lawmakers  confirmed that, in the case of an urgent interlocutory relief, there is actually no “undisputed evidence”, as once stated in the heading of article 273 of the CPC of 1973. In other words, notwithstanding the  filing of an authentic anticipation of the effects of the relief (thus, the production of substantial and not merely procedural effects), the plaintiff is authorized by the law to bring elements that the very law considers to be insufficient; so much so that it brought the opportunity of  “complementing the argumentation, the collection of other new documents, and the confirmation of the final pleading”.

It is worth recognizing that this is consistent with the rule of article 300, according to which the urgent relief – which includes the interlocutory relief based on this fundament – will be granted “when there are elements proving the probability of the right”. This wording, although not identical to the formula utilized by the heading of  article 303, points to this same direction: in the urgent interlocutory relief, Lawmakers started to accept that it be granted even if there is no high degree of certainty.

However, even running the risk of tedious repetition, it is important to remember what has been highlighted in two previous articles of this series: in fact, it is not possible to refuse the temporary relief given a situation of urgency solely for the argument of lack of “evidence”; be it provisional or interlocutory as to the effects of the final judgment. Nevertheless, it is necessary to insist on the circumstance that the interlocutory relief means the production (entire or partial) of the substantial effectiveness intended by the plaintiff in the claim. As already mentioned, the “urgent temporary relief is not only the provisional, aimed at ensuring the effectiveness of the main relief; the urgent temporary relief may, under the CPC 2015 system, have a satisfactory nature – as worded in article 4, when dealing with the reasonable duration of the proceeding– and given the requirement contained in item LV of article 5 of the Federal Constitution (CF), it is important for such sort of relief to be based on a higher degree of certainty as to the existence of the affirmed right”.

Overall, the new Law has advanced: it ruled out the incorrect idea that the interlocutory relief grounded on urgency could only be granted based on undisputed evidence. There are situations of urgency, in which the harm described by the plaintiff may only be eliminated through a typically interlocutory measure (not exactly provisional). Such situations cannot lack relief only by the argument that there would be no undisputed evidence. This, again, is correct and to some extent recovers the classic doctrine construction, according to which the interlocutory measures also  fit into the provisional measure system. But this idea, though correct, does not rule out the warning presented above, for the exposed reasons. This care is more up to law enforcers than to Lawmakers themselves, who need to establish a general and abstract rule.