O devido processo legal no pedido liminar nas ações possessórias.

Abstract

How can the magistrate establish, in casu, the procedural balance between the parties in the preliminary injunction procedure in new force possessory actions, considering the absence of contradiction in the summary cognition phase?In order to answer this question, we initially ask, an immersion in due legal process and procedural adequacy. The procedure for injunctive possessory postulation provided for in article 562 of the national code is analyzed, with the record that the reservation of production of testimonial evidence only permitted to the author, allows, in a specific hypothesis, a disadvantageous position for the defendant. To resolve the aforementioned procedural imbalance, the magistrate, guided by due legal process, can make use of the flexibility clause in article 7 of the same diploma and make atypical adjustments to the procedure in order to ensure the contradiction. As for methodology, it takes a dogmatic, analytical and normative approach through a review of national and foreign literature. Finally, it is concluded that, in the event that, in the context of a hearing to justify possession, there is authorial testimonial evidence that unanimously declares the requirements of article 561 favorable to the author, the magistrate, through a decision based on a flexibility clause, article 7 of the 2015 codex, it has the power and duty to, in casu, make the procedure for hearing the defendant's witnesses more flexible in order to restore equality.