Mandado de segurança como tutela definitiva da evidência e sua liminar como tutela provisória de urgência e/ou da evidência: aplicação subsidiária do CPC e reformas necessárias para garantir a duração razoável e a efetividade do processo

Abstract

The thesis conceives the judgment of merit granted by the writ of mandamus and its possible enforced execution as definitive protection of the evident right against the State, based on complete cognition and, therefore, apt to form res judicata. It also includes the preliminary injunction in the nature of mandamus relief and its possible enforced execution as a judicial relief of urgency and / or evidence. It also takes into account that the legislator of the writ of mandamus sought, historically, to construct a simpler and faster procedure than the common procedure for the protection of the right that has been violated or is threatened by an authority of the State and that is evidenced by pre-constituted documentary evidence, and that the procedure of the writ of mandamus no longer fully complies with the principles of effective judicial protection (Article 5, XXXV, of the Constitution of the Federative Republic of Brazil of 1988) and the reasonable duration of the proceedings (Article 5, LXXVIII, of the Constitution of the Federative Republic of Brazil of 1988). Based on these basic ideas, it defends the subsidiary application of art. 304, CPC, which deals with the stabilization of an interim judicial relief of a right, to the injunction of the writ of mandamus; and that the articles of the CPC which regulate the interim judicial incidental relief of a right threatened by periculum in mora and the interim judicial relief of an evident right apply to the mandamus process. It also propose to change the legislation that disciplines the writ of mandamus in order to establish a new procedure which fully complies with the fundamental principles of the procedure, in particular the effective judicial protection and the reasonable duration of the proceedings.