Elementos da tutela inibitória

Abstract

The present paper aims to analyze the elements that constitute the prohibitory injunction, a distinct technique inserted on 2015 in the Civil Procedure Code in its 497th article, sole paragraph, which imposes an obligation to do or not to do. Of an eminently preventive nature, the prohibitory injunction seeks to discourage the practice, continuation or reintegration of an act contrary to the law, so as to preserve the proper performance of the norm, especially by the ability to protect the material right that is about to be assaulted. It differs from other forms of judicial protection, since it tends to protect the law before the occurrence of damage, an element that was traditionally indispensable when it comes to judicial protection, considering it is typical of repressive protection, which presupposes the violation of the law already established. In order to resort to that procedural technique, irrelevant is the demonstration of the existence of future damage, as well as the guilt or intent of the opposing part. Therefore, from the examination of the assumptions inherent to the referred tutelage, it is verified that the prohibitory injunction is essentially focused on the defense of material right, especially those that do not allow its transformation into mere pennies, meetings its constitutional presupposition is the 5th article, item XXXV, of the Federal Constitution, which provides the exercise of the process as an effective state instrument in the pursuit of the satisfaction of material law. Prohibitory injunction is closely linked to procedural effectiveness, especially when required through early urgent custody, since it is geared to the future, not the past, as traditionally posed by procedural law. Aiming at the integrity of rights and strongly averse to the patrimonial nature, the prohibitory injunction carries a high aptitude to adapt to the social reality, seeing that it is able of guaranteeing the inviolability of a right that is being threatened, to the extent that there is a possibility of unlawful act.