A aplicação dos direitos fundamentais nas relações jurídicas privadas

Abstract

The analysis of the possibility of application the fundamental rights in the juridical privates relationships is the main theme of this essay. It also treats about the process of Constitutionalization of the private law, taking in account that the strengthening of the Constitution provided a reestructuration of fundamental rights before the juridical system. It also analyses important aspects of fundamental rights, as the universal character that is inherent to them. It studies relevant dogmatic arguments – as the normative strength of the Constitution, the immediate applicability of the fundamental rights clause and the proper characteristics of the jusfundamental norms – that strengthen the acceptation of the thesis that the fundamental rights link straightly also private person. It is also about the private autonomy and its constitutional protection, in order to prove that fundamental rights are not absolute in case of conflict, for the private autonomy is also benefited by the constitutional protection. It treats about the collision of fundamental rights as a collision problem between principles to, then, sustain the argument that, in such cases, the solution occurs through the utilization of the hermeneutic method of ponderation. Hence, it is sustained that ponderation can be controlled, searching for a result that does not affect the principle of proportionality. At last, it is made an analysis of some practical cases judged by the “Supremo Tribunal Federal”, that treat about collisions between fundamental rights in relationships privates to, from theses analyses, conclude all the reasoning constructed along the work, that the immediate application of the fundamental rights in private relations is the best option among the presented theories.