REPOSITORIO PUCSP Teses e Dissertações dos Programas de Pós-Graduação da PUC-SP Programa de Estudos Pós-Graduados em Direito
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dc.creatorLevada, Cláudio Antônio Soares-
dc.contributor.advisor1Nery, Rosa Maria de Andrade-
dc.date.accessioned2016-04-26T20:21:30Z-
dc.date.available2005-10-27-
dc.date.issued2005-10-27-
dc.identifier.citationLevada, Cláudio Antônio Soares. Abuse of Process in the New Brazilian Civil Code. 2005. 208 f. Tese (Doutorado em Direito) - Pontifícia Universidade Católica de São Paulo, São Paulo, 2005.por
dc.identifier.urihttps://tede2.pucsp.br/handle/handle/6079-
dc.description.resumoThe abuse of process is a theme of great repercussion in the range of the national civil responsibility, either in the contractual or extra contractual area or Aquilian. The present thesis defends its relevant application in uncountable hypotheses, mainly after the edition of the current 2002 Civil Code that predicted it expressly on Art.187, in the following terms: Also commits an illicit act, the owner of a right that exerting it, exceeds manifestly the limits set by its economical or social purpose, by its good will or by its good customs This research makes a historic introduction to the subject and points the institute in the compared Law. It studies the abuse of process in its nature defending its occurrence even when there is no fault from the author of abusive behavior. It analyses related institutes, properly discriminated, its similar point and differences, together with concrete cases notes decided in Brazil and abroad, and following analysis of the solutions adopted. In philosophical terms, we looked forward to defend that the abuse of process is incompatible with positivist doctrines, still existing necessity of ideological analysis and value of the agent s behavior and its consequences to identify it. We noted as well the correlation between the abuse of process and several constitutional principles that expand in the range of private rights and have concrete application on it. Political questions were analyzed connected to this institute and its relation to the free choice to contract and the autonomy of the will typical of individualist doctrines from which the current Code got apart, substituting them by doctrines that value the collective interest, the social solidarity and the human dignity. The conclusions taken along this research, highlight the necessity of Judiciary intervention into the contracts and social relationships as a form of attenuate the differences between the parts and put them again into equilibrium, avoiding or reducing the damages caused to the abuse victim. Along this research, essential aspect was the demonstration that the process abuse is an illicit act, that can be characterized independently from the abuser s intentions of causing or not damage to the victim, or even with no fault in his behaviorpor
dc.description.abstractThe abuse of process is a theme of great repercussion in the range of the national civil responsibility, either in the contractual or extra contractual area or Aquilian. The present thesis defends its relevant application in uncountable hypotheses, mainly after the edition of the current 2002 Civil Code that predicted it expressly on Art.187, in the following terms: Also commits an illicit act, the owner of a right that exerting it, exceeds manifestly the limits set by its economical or social purpose, by its good will or by its good customs This research makes a historic introduction to the subject and points the institute in the compared Law. It studies the abuse of process in its nature defending its occurrence even when there is no fault from the author of abusive behavior. It analyses related institutes, properly discriminated, its similar point and differences, together with concrete cases notes decided in Brazil and abroad, and following analysis of the solutions adopted. In philosophical terms, we looked forward to defend that the abuse of process is incompatible with positivist doctrines, still existing necessity of ideological analysis and value of the agent s behavior and its consequences to identify it. We noted as well the correlation between the abuse of process and several constitutional principles that expand in the range of private rights and have concrete application on it. Political questions were analyzed connected to this institute and its relation to the free choice to contract and the autonomy of the will typical of individualist doctrines from which the current Code got apart, substituting them by doctrines that value the collective interest, the social solidarity and the human dignity. The conclusions taken along this research, highlight the necessity of Judiciary intervention into the contracts and social relationships as a form of attenuate the differences between the parts and put them again into equilibrium, avoiding or reducing the damages caused to the abuse victim. Along this research, essential aspect was the demonstration that the process abuse is an illicit act, that can be characterized independently from the abuser s intentions of causing or not damage to the victim, or even with no fault in his behavior. The conclusions, in a number of 56 were general and tried to follow the order of the themes approached, at least as a ruleeng
dc.formatapplication/pdfpor
dc.thumbnail.urlhttp://tede2.pucsp.br/tede/retrieve/15107/ClaudioLevada.pdf.jpg*
dc.languageporpor
dc.publisherPontifícia Universidade Católica de São Paulopor
dc.publisher.departmentFaculdade de Direitopt_BR
dc.publisher.countryBRpor
dc.publisher.initialsPUC-SPpor
dc.publisher.programPrograma de Estudos Pós-Graduados em Direitopt_BR
dc.rightsAcesso Abertopor
dc.subjectabusopor
dc.subjectboa fé objetivapor
dc.subjectequilíbrio contratuapor
dc.subjectAbuseeng
dc.subjectgood faitheng
dc.subjectcontracteng
dc.subjectDireito civil - Brasilpor
dc.subjectAbuso de direitospor
dc.subject.cnpqCNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO::DIREITO PRIVADO::DIREITO CIVILpor
dc.titleO abuso e o novo direito civil brasileiropor
dc.title.alternativeAbuse of Process in the New Brazilian Civil Codeeng
dc.typeTesepor
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