A função social da posse e seus instrumentos de efetivação - conquistas e desafios do sistema jurídico brasileiro

Abstract

This research has as its primary problem the issue of access to housing and land conflicts related to occupations. Which peaked during the recent pandemic period. Thus, the chosen object of study is the struggle in the legal field for the recognition of possession and its social function, the legal instruments provided for its effectiveness and the challenges for its materialization. In view of the apparent resistance to its recognition in court, contrary to the broad apparatus that the Brazilian legal system offers in favor of the possession and fulfillment of its social function. In this sense, an attempt was made to clarify the legal, doctrinal and jurisprudential aspects, as well as to offer a brief framework for study, reflection and action for law operators; in addition to alerting the legal community to the urgency of adapting to the current legal system to the detriment of certain dogmas that have already been overcome. For this purpose, an interdisciplinary basis was used between Constitutional Law and Civil Law, with emphasis on Civil Law, and a legal-sociological perspective for a comparative analysis of legal praxis (theory and practice), its consonances and contradictions. Through bibliographical and documentary data (legislation) and empirical research (judgments and jurisprudence); followed by grammatical, logical and systematic hermeneutic treatment. Dividing the research into three chapters: i) the social function of possession, ii) the legal instruments for its effectiveness and iii) the recognition or not of the social function of possession of occupations. From which, it was possible to verify that the social function of possession is an implicit constitutional principle materialized through use according to social well-being, currently more connected to housing and/or work. But that, in practice, the first instance judges, unlike the understanding of the STJ, seem to consider property as an absolute right and condemn autonomous possession per se. A congruent treatment with the current legal order is necessary, including through special commissions of land conflicts in the courts with broad participation of popular organizations, in order to provide greater uniformity of judgments and, consequently, legal certainty.