The possibility of judicial interruption of the prescription by filing the previous anticipatory protection action, with stabilization of the injunction

Abstract

In this work, we will deal with urgent judicial protection, granted on an antecedent and satisfactory basis. The focus will be on the anticipatory protection required in advance of the lawsuit and its possible effects on the judicial interruption of the prescription in cases of stabilization. To do this, we will take into account the rule of judicial interruption of prescription provided for in art. 202, I, of the Brazilian Civil Code, as well as the fact that the previous anticipatory relief action, which generated the stabilization of the injunction, did not judge the merit of the demand. In development, we start from the presentation of provisional guardianship, as a genus, and its species, detailing the provisional guardianship granted in advance of the lawsuit. Next, we bring the requirements and effects of stabilization of the injunction granted in the provisional guardianship in question. We also go through the judicial interruption of the prescription by filing an action, addressing the requirements for the incidence of the interruptive cause and the moment of retroaction from the summons of the defendant. Along the way, we will bring the understanding of the Superior Court of Justice (STJ) and our vision on the topic, based on judicial-doctrinal2 and legal arguments. Finally, we will deal with antecedent advance relief with preliminary stabilization and its effects on judicial prescription, addressing the hypotheses and requirements of stabilization, as well as evaluating cases of cumulative requests with partial stabilization, beyond to the hypotheses of addition and amendment of the antecedent request.