Anticipatory Relief

1. Definition, Concept, and Legal Nature

Anticipatory relief, under the aegis of the 2015 Code of Civil Procedure (CPC/15), is classified as a type of provisional relief for urgency of a satisfactive nature. It differs from precautionary relief (tutela cautelar) in that it is not limited to ensuring the useful result of the proceedings, but allows the litigant to immediately enjoy the substantive right claimed, even if in a precarious and revocable manner.

Its legal nature is that of an interlocutory decision based on summary cognition (probability of the right), as opposed to the exhaustive cognition typical of final judgments. The institute aims to mitigate the deleterious effects of procedural delay, transferring the burden of time from the plaintiff (who demonstrates probability and danger) to the defendant.

2. Historical Evolution and Comparative Law

Historically, the Brazilian procedural system was marked by a rigid dichotomy between the cognitive process and the precautionary process. The anticipation of effects was restricted to special procedures, such as possessory actions and the writ of mandamus (mandado de segurança).

The major reform occurred with Law No. 8,952/1994, which introduced Article 273 into the 1973 CPC, generalizing anticipatory relief. It was inspired by the French référé model and the provvedimenti d'urgenza of Italian Law (Art. 700 of the Codice di Procedura Civile). With the advent of the 2015 CPC, the legislator unified the regime of provisional relief (Arts. 294 to 311), extinguishing the autonomous precautionary process and establishing fungibility and the technique of stabilization.

3. Legal Provision and Positive Requirements

The primary legal foundation lies in Article 300 of the Code of Civil Procedure (Law No. 13,105/2015), which establishes the cumulative prerequisites for granting urgent relief:

• Probability of the right (fumus boni iuris): The demonstration that the allegations are plausible and supported by evidence or robust legal reasoning.
• Danger of harm or risk to the useful result of the proceedings (periculum in mora): The contemporary urgency that prevents waiting for the final and unappealable judgment (res judicata).
• Reversibility of the measure (Art. 300, § 3º): The prohibition, as a rule, of granting anticipatory relief when there is a danger of irreversibility of the factual effects of the decision.

Furthermore, the CPC provides for the antecedent modality (Arts. 303 and 304), in which the initial petition may be limited to the request for relief and the indication of the final claim, and the incidental modality (Art. 295), requested within the scope of ongoing proceedings.

4. Practical Application and Jurisprudential Understanding

The application of anticipatory relief is vast, ranging from the provision of medicines and health treatments to the suspension of extrajudicial auctions or the removal of names from credit default registries.

Superior Court of Justice (STJ)

The STJ has consolidated an important understanding regarding the stabilization of anticipatory relief (Art. 304). In the judgment of REsp 1,766,376/TO, the Special Court defined that stabilization occurs only in anticipatory relief requested in an antecedent character, in the event that the defendant party does not file an interlocutory appeal (agravo de instrumento). Once stabilized, the decision does not constitute material res judicata, but its effects persist as long as an autonomous review action is not filed (two-year statute of limitations).

Supreme Federal Court (STF)

The STF, in ADC 4, declared the constitutionality of Art. 1 of Law 9,494/97, which restricts the granting of anticipatory relief against the Public Treasury in specific matters (such as reclassification or equalization of public servants and the granting of increases or extension of benefits).

Superior Labor Court (TST)

In the labor sphere, Precedent (Súmula) 414 of the TST guides that anticipatory relief granted before the sentence is challengeable via writ of mandamus, given the lack of an immediate appeal for interlocutory decisions in labor cases.

5. Related Principles and Doctrinal Divergences

The institute dialogues directly with the following principles:

• Principle of Effectiveness: Delayed justice is, often, non-existent justice.
• Principle of Deferred (or Postponed) Adversarial Proceedings: The possibility of granting relief inaudita altera parte (without hearing the defendant beforehand) to ensure the utility of the measure, postponing the defense to a later moment.

Divergence on Irreversibility: Part of the doctrine (such as Marinoni and Mitidiero) argues that the requirement of reversibility is not absolute. In cases of collision of fundamental rights (e.g., right to life vs. property rights), proportionality must be applied, allowing the relief even if irreversible, under penalty of emptying the more burdensome right.

6. Contemporary Relevance and Impacts on the Legal System

Anticipatory relief is the main instrument for combating the "pathology of the process" — slowness. In the current scenario of predatory litigation and judicial overload, the anticipation technique allows the time of the proceedings to be managed ethically. The introduction of the stabilization of relief represents a step forward towards procedural economy, allowing conflicts to end prematurely if the parties comply with the satisfactive preliminary decision.

Legal and Jurisprudential References

• Brazil. Law No. 13,105, of March 16, 2015. Code of Civil Procedure.
• Brazil. Constitution of the Federative Republic of Brazil of 1988. Art. 5, item XXXV (Inviolability of Jurisdiction).
• STJ. Special Appeal No. 1,766,376/TO. Rel. Min. Gurgel de Faria, Special Court, judged on 12/04/2018.
• STF. Direct Action of Unconstitutionality (ADC) No. 4. Rel. Min. Sydney Sanches.
• TST. Precedent (Súmula) No. 414. Writ of mandamus. Anticipatory relief.
• MARINONI, Luiz Guilherme. Tutela de Urgência e Tutela da Evidência (Urgent Relief and Evidence Relief). São Paulo: Revista dos Tribunais, 2017.