Author(s) Marco Carvalho Gonçalves
Advisor(s) Miguel Teixeira de Sousa and Elizabeth Fernandez
Year 2014

Synopsis This study analyzes the legal responsibility of the applicant for an unjustified provisional measure, based on the previous analysis of the situations in which a provisional measure should be regarded as unjustified. In addition, we seek to determine to what extent and in what way is that the legal system protects the position of the defendant to a provisional measure that turns out to be unjustified. In pursuit of this goal, we chose to structure this research into four parts. In the first part, we will seek to contextualize, in historical terms, the treatment from the applicant for an unjustified provisional measure in Portuguese law. In turn, in the second part, we will try to integrate and define the concept of “unjustified injunction”. For this purpose, we will analyze the scope, requirements and limits of provisional protection, determining to what extent the legislature guarantees access to this form of provisional composition of the dispute, the methods and purposes of the interim, their characteristics and requirements for its enactment. In this second part, we will also analyse the legal regime of the specified provisional measures, seeking to determine under what circumstances they may be considered unjustified. The third part will be dedicated to the treatment of the procedural mechanisms of preventive protection of the defendant against the enactment of a provisional measure, in other words, we will seek to determine to what extent the legislature protects the defendant against the harmful consequences of a provisional measure that once subjected to adversarial or to a deeper judicial review, turns out to be unjustified. The fourth part is devoted to analyzing the regime of civil liability of the applicant for an unjustified provisional measure. In this context, we will analyze in detail the legal requirements for the civil liability of the applicant for an unjustified provisional measure as well as the special schemes for civil liability of some specified provisional measures in the Portuguese law. Finally, after we approach the procedural rules relating to the civil liability of the applicant for an unjustified provisional measure, particularly in relation to the assessment of the dispute to know what is the appropriate time for the procedural assessment of this responsibility, we will seek to distinguish between the regime of civil liability of the applicant for an injunction unwarranted and some related figures and present possible contributions to the reform of its legal regime.

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