Crianças, adolescentes e a prática de atos da vida civil: uma revisão do regime das incapacidades por parâmetro etário à luz da teoria dinâmica das habilidades e do princípio da autonomia progressiva

Abstract

The Brazilian Civil Code currently does not observe the principle of progressive autonomy in the construction of the rules applicable to the legal capacity of children. In this context, the literature focuses on proposing interpretative solutions that are internally inconsistent and do not have the effect of resolving the issue. Therefore, the objective of this dissertation is to present a proposal for a legislative reform that will better align the legal limits to the legal capacity of people under 18 with the principle of progressive autonomy. In doing so, it will take into account central aspects to the cognitive development of children and adolescents as explained by the dynamic skill theory, by Kurt W. Fischer. To this end, the work will be guided by the legal-dogmatic aspect, of a propositional type. In the end, it will be concluded that: the limit of 18 years should be maintained and that the intermediate milestone is to be reduced to 12 years; the structure “rule: invalidity; exception: validity” should be preserved;”; for the revocation of articles 5, sole paragraph, items III and IV, and 589, items II, III, IV and V; by amending articles 3, 4, 5, sole paragraph, item V, 180, 666 and 1,860, sole paragraph; and by the inclusion of a new article in the general part on legal acts typical of everyday life, of a paragraph according to art. 5 and a single paragraph to art. 1.634.