https://ri.ufs.br/jspui/handle/riufs/210 2026-04-30T15:16:37Z 2026-04-30T15:16:37Z Hora Neto, João https://ri.ufs.br/jspui/handle/riufs/17471 2023-04-25T21:52:17Z 2021-01-01T00:00:00Z

Título: A força normativa da boa-fé objetiva Autor(es): Hora Neto, João Abstract: Despite gestating in Roman contractualism (bona fides), this thesis asks whether objective good faith has an expansionist vocation/normative force capable of reaching other branches of private law and, also, public law, as well as whether it has a nature principle, properly applied in the light of constitutional civil legality. The general objective is to investigate whether there is an expansionist vocation, as well as whether objective good faith is a norm-rule or a principlenorm and whether its practical application is in accordance with the premises of constitutional civil law. The methodology used was documentary/bibliographic research, national and foreign, with data collection through bibliographic material, through doctrinal, jurisprudential and legal texts investigation, in addition to a dogmatic approach, by logical, grammatical and systematic interpretation, in accordance with the deductive, inductive and dialectical reasoning. According to the eight chapters exposed, it became evident that the constitutionalization of civil law requires a re-reading in the light of its strict premises, given the imprecise application of several general clauses and, among them, objective good faith. The express acceptance of objective good faith in the Civil Code was noted, visible for its triple function, as well as its connection with the contract since Roman law, and, in modernity, its close connection with its modern conception, was noted, with a constitutionalized profile, through civil, business and consumer contracts. It was observed that objective good faith is a rule of public order (loyalty/conduct/honesty) that imposes 'duties of consideration/conduct' arising from the modern conception of obligation (dynamic, cooperative, solidary) and that are independent the will of the contracting parties and are not bound by a particular type of contract. Its incidence was also observed in any contractual phase (pre, during and post), including in other branches of private law. In view of the overcoming of the summa divisio and considering that the Brazilian legal system adopts an open normative model, permeated by general clauses, the incidence of objective good faith was also demonstrated in terms of public law, as it is an ethical-legal principle and a transdisciplinary legal category, whose aim is to achieve the maximum realization of a constitutional value. The transformation of civil liability in postmodern society ('risk society') was examined in view of the mitigation of its classic assumptions (guilt, nexus and damage) and a fourth evolutionary phase of state civil liability was pointed out, that is, the State as guarantor of fundamental rights, which is why the specific state omission must be recognized in the light of new principles, and, among which, objective good faith. It was attested that such specific omission constitutes an infringement of the duty of diligence of the Constitutional State, thus violating the 'duties of consideration' relating to objective good faith, which is also rooted in constitutional principle (morality, efficiency, security, legality etc.). It was argued that objective good faith is a principle-norm (optimization command) and not a norm-rule, being subject to restriction, through the proportionality test, the result of which generates its essential content, thus present in the private law and public law. It was noted that the Brazilian legal system does not follow the Free Law School, which rejects the culture of judicial decisionism in force. Finally, it was concluded that objective good faith, regardless of Roman contractual law, has a normative force to reach the other branches of law (private and public), being a principle-norm that generates an essential content and that, in view of of its imprecise practical application, it must be operationalized in the light of constitutional civil legality, regarding legal certainty, based on the authority of the argument and not on the argument of authority (arbitrary, sentimental and ideological).

2021-01-01T00:00:00Z Menezes, Carlos Alberto https://ri.ufs.br/jspui/handle/riufs/1779 2016-05-25T05:00:16Z 2008-01-01T00:00:00Z

Título: O limite das exculpantes penais: a inexigibilidade de conduta diversa como topos e solução Autor(es): Menezes, Carlos Alberto Abstract: Trata-se aqui de pesquisa teórica que tem por objeto a relação entre o tema do limite das exculpantes penais e o uso da inexigibilidade de conduta diversa como topoi, tendo em vista a justiça do caso concreto. A idéia é demonstrar que, a partir dessa relação, é possível garantir a segurança que um dia a razão penal prometeu ao indivíduo. Autônomo, igual, livre, e ainda dotado de razão e subjetividade, o indivíduo que a razão moderna contempla é aquele que fez a passagem da dependência para a emancipação e, assim, tornou-se capaz de responsabilidades. Concebido desse modo, ele se liga, de um lado, ao consenso que gerou o Estado pela via do contrato social, e, de outro, à legalidade penal que daí resultou. Neste caso e para justificá-la, o direito penal elegeu a promessa de segurança jurídica como peça central de seu discurso. Ela seria deduzida, ora dos crimes (e das penas correspondentes) como previsão determinada e escrita, ora do delito como sistema fundado numa ação combinadamente típica, ilícita e culpável. A experiência jurídica, no entanto, mostra-se desapontada com aquela promessa. É o que se dá no setor da culpabilidade, especificamente com as exculpantes. Fora dos casos–padrão, suas insuficiências [lacunas] ficam evidentes quando exigências de justiça material se articulam com casos-limite. Assim são considerados aqueles casos para os quais a lei penal não contempla hipóteses que permitam deduzir todas as conseqüências de uma ação na qual o indivíduo não pôde, por conta de circunstâncias anormais, tomar a norma como fonte de inspiração. Nesse ponto, instaura-se um problema cuja solução é encontrada no conceito de inexigibilidade de conduta diversa. Sem lugar definido nos domínios da legalidade, seu uso é sustentado, não a partir do sistema penal, mas do problema concreto, e assim é assumido como topoi, uma categoria emprestada das teorias da argumentação._________________________________________________________________________________________ ABSTRACT: What we have here is theoretical research that deals with the relation between the theme of the limit of penal exculpates and of the use of undemanding diverse conduct as topoi, taking into consideration the justice of the case itself in a concrete way. The idea is to demonstrate that from this relation it is possible to guarantee the security that penal reason once promised the individual. Independent, equal, free, and yet endowed with reason and subjectivity, the individual that modern reason contemplates is that who made the passage from dependency to liberation thus becoming capable of responsibilities. Conceived this way, he associates himself, on one end to the consensus that generated the State through the way of a social contract and, on the other end, to the penal legality that arose afterwards. In this case and also to justify it, penal law chose to promise judicial security as the main piece of its speech. Such promise would be inferred, at times from the felonies (and from the corresponding arbitrated punishments) as determined and written foresight, and at times from the felony itself as a founded system within a combined action i.e. typical, illegal and culpable. However, the judicial experience shows itself disappointed with such promise. This is what happens in the field of culpability, more specifically with exculpates. Aside from average cases, their insufficiencies (omissions) are evident when demands from material justice articulate themselves with borderline cases. This is how cases are considered, those for which the penal law does not contemplate hypothesis that allow inferring all the consequences of an action in which the individual was not able, because of abnormal circumstances, to take such norms as a source of inspiration. At this point, a problem is established and the solution is found in the concept of undemanding of diverse conduct. Without a defined place in the realms of legality, its usage is sustainable, not because of the penal system, but of the concrete problem in itself and thus it is absorbed as topoi, a category borrowed from the theories of argumentation.

2008-01-01T00:00:00Z