A viabilidade jurídica da responsabilização civil sem dano no direito brasileiro : um estudo do aparente crescimento da tese e suas responsabilidades

Abstract

Does the Brazilian civil legal system allow the existence of hypotheses of civil liability without the existence of a harmful situation? It was this question that piqued my curiosity and served as the starting point for the research presented here. In this sense, the main objective of the present work was to try to answer this question, to understand the feasibility of applying the thesis in forensic practice and how this would happen, what are the justifying premises, the form of construction, in view of the normative limitations in the Brazilian legal system and how the jurisprudential custom can help to change the reality of the institute of civil responsibility, in addition to demonstrating the possible advantages of using the adopted thesis. For this, initially, through the use of a descriptive method, general considerations were made regarding the institute of civil liability in Brazilian Law and its essential elements, in addition to an evolutionary observation of the theme, in order to demonstrate the mutability and adaptation of this social realities until arriving at the theoretical scope currently in force, for this purpose, the technique of document analysis and bibliographical review of understandings and studies in the civil field on civil liability were used through the analysis of consolidated doctrinal theses in Brazilian Civil Law. Subsequently, through a deductive method, broad assumptions of Law were analyzed in order to apply them to the situation presented here, to understand how these assumptions can serve as a starting point for the construction of the thesis now exposed through the theory the dialogue of sources and the treatment of Law as a systemic unit. Finally, bearing in mind emerging studies on civil liability without damage in the country's legal system, it was explored, through a dialectical method and the analysis of judgments of the Superior Court of Justice, the element of damage itself, with the aim of understanding the problems in the most varied biases and making room for the foundations that contradict each other to reach a point of reasonableness between them. The approach will be qualitative and will bring aspects already dealt with by the doctrine of the subject, real hypotheses of judgments and their decisum, reaching a point of probable solution of viability of the application of civil responsibility without damage, but with the confrontation of goals to be transposed by a joint construction of doctrine, jurisprudence and legislation.