A desapropriação no estado democrático de direito: análise da recepção dos artigos 9º e 15 do decreto-lei nº 3.365/1941 pela Constituição de 1988, em perspectiva histórica

Abstract

This article aims to bring up an analysis of the historical origins of Decree-Law nº 3.365 of 1941, together with an analysis of the reception of art. 9 and 15 of this legal framework by the 1988 Constitution. Expropriation is an important instrument for the implementation of public policies promoted by the State, such as education, culture and health, and also indispensable for the development of cities. the art. 9 mentions the impossibility of the Judiciary in the expropriation process, verify; whether cases of public utility or need are foreseen. While art. 15 provides for the possibility of provisional imposition of possession by the Public Power, subject to certain legal conditions. However, considering its importance and purposes, expropriation cannot be disconnected from the most revered constitutional principles, such as those provided for in art. 5, items XI, XXXV, LIV and LV of the Constitutional Text itself. Thus, the research asks whether art. 9 and 15 of Decree-Law nº 3.365 of 1941 were accepted by the Constitution? So with this question; the legal intricacies that seek to bring this questioning to light are revealed and thus contribute to the discussion about the limit of State power, according to the contours based on the Constitution. To achieve this goal, the type of legal-comprehensive research was used, aiming at the decomposition of a legal problem in its most varied aspects, from the reading of legal and historical works. Considering, in the end, the non-receipt by the Constitution of 1988 of articles 9 and 15 of Decree-Law No. 3,365 of 1941.