MITIGATION OF THE REVERSIBILITY REQUIREMENT IN INTERIM INTERIM RELIEF

Abstract

The Brazilian Code of Civil Procedure requires, in addition to the probability of the right and the presence of elements that show the danger of damage, the requirement of reversibility of the effects of the decision for the granting of provisional relief of anticipatory urgency. This is a guarantee, provided for in article 300, paragraph 3, of the CPC, inherent to the very conception of provisional remedies, which involve ideas of precariousness, revocability and mutability. Once the judge grants or denies a provisional relief on the basis of a summary cognition, without major investigations into the topic, the system requires that the effects of the decision must be reversible. However, the experience of national jurisprudence reveals the existence of specific cases in which the fulfilment of the latter condition is an obstacle to the achievement of rapid and effective access to justice. There are situations, not foreseen by the legislator, in which the asset to be protected by the provisional relief is of greater value – from the point of view of constitutional proportionality – than that which is intended to be protected with the requirement of reversibility. In view of this scenario, this monograph will discuss the requirement of reversibility provided for in article 300, paragraph 3, of the Code of Civil Procedure, as well as the possibility and need for its mitigation in very urgent and exceptional situations, in the light of the principle of proportionality, examined, especially claims related to the right to health.