(In)aplicabilidade da função punitiva da indenização como mecanismo de adequação de condutas no mercado de telefonia móvel brasileiro

Abstract

This dissertation has as theme the application of the institute of punitive damages by the Superior Court of Justice in the civil liability of companies in the mobile telecommunications market in Brazil. As a research problem, it is asked whether there are criteria for the application of punitive damages provided for in the Brazilian legal system and whether the judicial decisions of the Superior Court of Justice find legal support for the adoption of this institute as a mechanism for adapting conduct that violates consumers’ rights in that market. It is also questioned possible alternatives for the massive violation of those rights in this relevant sector of the chosen market. As a hypothesis, it is stated that the Superior Court of Justice does not adopt theoretical and objective criteria for the application of punitive damages to these business agents, which is why other mechanisms are more pertinent for the adequacy of misconducts in the market. Research is justified on the basis of society’s constant and growing desire to improve conflict resolution techniques and to seek faster and more effective measures for the composition of interests. The general objective of the research is to investigate the presence of theoretical and objective criteria in the application of punitive damages by the Superior Court of Justice in the mobile telecommunications market in Brazil and, if absent, to propose the adoption of other mechanisms to face the controversies arising from the repeated conducts that violate the consumers’ rights. Theoretical frameworks are the concepts of Nelson Rosenvald, Felipe Peixoto Braga Netto and Cristiano Chaves, which highlight the need to rethink the functions of tort law, which should act as a technique of social control, reaffirming the concept of human dignity and the paradigm of the Democratic State of Law, in addition to the idea of Marcelo de Oliveira Milagres, who emphasizes that the Superior Court of Justice, in setting the compensation quantum, takes into account the degree of disapproval of offensive conduct, the economic situation of those involved and the pedagogical and exemplary purposes of compensation, factors that are related to the punitive character of the damage. As for the methodological aspects, the research is inserted in the legal-dogmatic field and adopts, predominantly, the hypothetical-deductive reasoning. As for the knowledge sectors, the research is characterized as interdisciplinary, coordinating concepts of Civil Law, Consumer Law, Jurisprudence and Administrative Law, and is of a bibliographic and documentary type. The primary data of the research are the laws, resolutions and other norms, as well as the precedents of the Superior Court of Justice and the statistics of official agencies and research institutes related to the subject; and secondary data are the specialized literature on the subject, doctrine and academic articles.