A função punitiva da responsabilidade civil no sistema jurídico brasileiro: ensaio sobre a força do ativismo judicial

Abstract

The practical adoption of the punitive function of civil liability, even contrary to the legal dictates, is a fact proven in the contemporary Brazilian legal system. Through jurisprudential research and also from analyzes of relevant academic papers on the subject, it is proved that, although there is no satisfactory technical support, the punitive function of civil liability has guided several decisions issued by our courts. The ideas of sanction, prevention and education by example, especially with regard to moral damages, permeate the decisive grounds of the indemnity procedures brought to the appreciation of the Judiciary, not only as to the appreciation of the harm itself, but also, and above all, as regards its quantification in the present case. The most traditional application for this seems to be the bad importation of concepts from alien legislation in which punitive damages are pertinent realities and consistent with the respective legislative apparatus. However, what is proven by more in-depth studies on the subject is that the most adequate explanation for the adoption of the punitive function in the Brazilian system derives from a growing activist stance of our magistrates. Judicial activism, after all, turns out to be the mainstay of all this punitive reality of civil liability today. The desire of the judiciary alone to fill the supervisory gaps of the competent authorities, the increasingly common reiterations of poor and misleading services, the natural hyposufficiency of consumers, linked to the emergence of numerous and varied technologies and all the other complexities. from contemporary civil society, they make no alternative to magistrates but to do justice with their own hands; imposing, through the obligation to indemnify, real civil penalties for unlawful and, consequently, reprehensible conduct, practiced by the respective offenders. As a result, the number of indemnities that are in no way resembling the hypotheses of reparations as traditionally classified and understood is increasingly common. This situation cannot be maintained, not only because it is full of technical improprieties, but also because it is a source of legal uncertainty. This is because, in our legal system, there are several elements that make the adoption of this punitive function of civil liability inappropriate, as this thesis concludes. In the final analysis, indemnities cannot appear as instruments for unjustified interventions by the Government in private relations.