The precautionary measure constitutes a procedural instrument of an instrumental and accessory nature, present in the branches of Civil, Criminal, and Constitutional Procedural Law, intended to ensure the effectiveness of the final judicial ruling by preserving the state of fact or law, mitigating the risks inherent in the delay of the proceedings (periculum in mora) and based on the plausibility of the invoked right (fumus boni iuris).
Concept and Foundation
The precautionary measure, from the perspective of the general theory of procedure, does not claim satisfaction, but rather guarantee. Its legal nature is that of urgent relief, characterized by its provisional and revocable nature, acting as a "shield" intended to protect the utility of the definitive judicial provision. In Brazilian Civil Procedural Law, the reform introduced by the 2015 Code of Civil Procedure (CPC/15) promoted fungibility between reliefs, absorbing the former autonomous precautionary process into the provisional relief procedure (art. 294 et seq.), without, however, extinguishing the essence of precaution.
In the scope of Criminal Procedure, the precautionary measure takes on different contours, being governed by the principle of proportionality and necessity. The advent of Law No. 12.403/2011 restructured the system of personal precautionary measures, establishing that preventive detention is the ultima ratio, favoring alternative measures provided for in art. 319 of the Code of Criminal Procedure (CPP).
Historical Origin and Evolution
The institute dates back to Roman Law, through interdicts (interdicta), which aimed to protect possession and avoid imminent damage. With the evolution of procedural science, the thinking of Giuseppe Chiovenda and Francesco Carnelutti was consolidated, establishing the distinction between the cognitive function and the precautionary function of the process. In the Brazilian legal system, the 1973 CPC dedicated an autonomous book to precautionary measures, a paradigm that was overcome by the procedural speed required in contemporary times, culminating in the unification of urgent reliefs under the aegis of procedural effectiveness.
Legal Provision and Normative Structure
The national legal system provides robust support for precautionary measures:
- CPC/15: Articles 294 to 311, which regulate provisional urgent relief (precautionary and anticipatory);
- CPP: Articles 312 to 320, which govern personal precautionary measures, and articles 125 to 144, which deal with real precautionary measures (sequestration, attachment, legal mortgage);
- Federal Constitution: The principle of due process of law (art. 5, LIV) and the need for justification of judicial decisions (art. 93, IX) constitute the pillars of validity for any precautionary measure.
Practical Application and Jurisprudence
The jurisprudence of the Superior Courts (STF and STJ) has consolidated rigid criteria for the granting of precautionary measures. In the STF, ADI 6.357 and precedents on precautionary measures in concentrated control reinforce the need for unequivocal demonstration of the risk of loss of the right. In the STJ, Súmula 405 exemplifies the precautionary application in the tax sphere (suspension of the enforceability of credit). Recently, the STF has intensified the debate on ex officio precautionary measures in criminal proceedings, setting the limits of art. 311 of the CPP against the accusatory system.
Related Principles and Doctrinal Divergences
Doctrine, represented by names such as Fredie Didier Jr. and Aury Lopes Jr., diverges on the autonomy of precaution. While the classical school defends the need for a precautionary process, the modern school, aligned with effectiveness, maintains the incidental and accessory nature of the measure. Principles such as proportionality, homogeneity, and adequacy are the interpretive vectors that prevent the abusive use of precautionary power by the magistrate.
Contemporary Relevance
In the era of digital proceedings, the precautionary measure has become the most effective instrument for the protection of fundamental rights in a virtual environment (e.g., blocking profiles, suspending platforms, seizing digital assets). The speed required by the information society places the precautionary measure at the center of the debate on judicial activism versus procedural guarantees, requiring the magistrate to perform a technical analysis that avoids emptying the adversarial process without, however, compromising the utility of the final judgment.
Legal and Jurisprudential References
- Brazil. Law No. 13.105, of March 16, 2015. Code of Civil Procedure.
- Brazil. Decree-Law No. 3.689, of October 3, 1941. Code of Criminal Procedure.
- STJ, Súmula 405: "Upon a request for anticipatory relief in a precautionary action, if the object of the main action is the suspension of the enforceability of tax credit, the provisions of art. 151 of the CTN apply."
- STF, ADI 6.357/DF (Rel. Min. Alexandre de Moraes, 2020) – Debate on the limits of precautionary measures in concentrated control.
- Law No. 12.403/2011 - Changes to the regime of personal precautionary measures.
