A utilidade da tutela da evidência punitiva e documentada como instrumento de efetividade processual

Abstract

In the 90's, Marinoni made an important contribution to Brazilian procedural law, especially regarding the problematic boredom of procedural effectiveness. Interpreting subsection II of art. 273, CPC/73, he inspired the introduction of § 6o to art. 273, CPC/73. According to the thesis, based on that provision, the part could request the magistrate's assessment of merit to be anticipated, once the issue was about uncontroversial right. Due to these doctrinal issues, section II of art. 273 became, with some modifications, evidence tutelage of art. 311, CPC/15. Meanwhile, §6o of art. 273, CPC/73 gave rise to the early partial judgment of merit, provided in art. 356, CPC/15. Due to the possibility of its concession inaudita altera parte or after the contradictory, the protection of the evidence has been seen as an advance to procedural effectiveness. However, because they originate from the same article, it becomes difficult to differentiate them in practice, diverging the doctrine as to the usefulness of the protection of the evidence based on subsections I and IV. In this bias, the present work has proposed to discuss the usefulness of the protection of the evidence in the cases of the mentioned sections, in order to verify if, in fact, the granting of protection of evidence based on these items inevitably leads to an early judgment (total or partial) of merit, or whether it is possible to attribute to the devices different interpretation.