Navegando por Assunto "Danos (Direito)"

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Acesso aberto (Open Access)
Danos em massa e os punitive damages
(Universidade Federal do Pará, 2015-03-04) BONNA, Alexandre Pereira; LEAL, Pastora do Socorro Teixeira; http://lattes.cnpq.br/3244282344643324
A rereading of the punitive damages institute is proposed from the perspective of its interface situated between the collective action and the mass damages. It is examined whether the indemnity that arises out of the punitive damage should be handled in a context of collective or individual actions, aiming to satisfactorily answer which of the aforementioned ways is the most suitable, by taking an analysis based on the comparative method, sustained by two factors: the right to proof of the relevant facts to characterize the punitive damages and measuring the degree of reprehensibility of the conduct and the economic theory of punitive damages on the discouragement, based on the theory Polinsky and Shavell. A research is performed assuming that the punitive damages has a place is Brazilian’s legal system based on the theory of law as integrity from Ronald Dworkin, nevertheless, the outline of the punitive damages are searched in the North American Juridical experience as a theoretic base for the comparison made with eyes turned to the Brazilian case. An analysis of the precedents of the Supreme Court of the United States is performed and the relevant facts for the punitive damage are adopted based on the interpretation of such Court. The application profile of the punitive damages in the United States and in Brazil are traced, intending to identify the weak elements in the national legal practice. The requisite of the superiority of the collective actions seen in the North-American experience is brought to Brazilian Law from the perspective of the interest to act and the effectiveness of the process. The meaning of the superiority test is deepened based on the test that exists in the North-American experience with the class actions, which is used in the task to determine if the rights at stake are able of being collectively judged in the context of the class action for individual damages, in other words, the superiority is a requisite for the processing of a class action, implying that the magistrate must evaluate whether the class action is superior to other available proceedings, in terms of justice and efficiency of the decision. Examines the superiority of collective protection for the right proof of the relevant facts to the impact of punitive damages and assessing the degree of reprehensibility of conduct. Assesses the superiority of collective protection under the paper disincentive situated in economic fundamentals of punitive damages. The conceptualization of mass damages is adopted, allocated in the scope of procedural law. It is concluded that when facing individual mass damages produced in a large scale, the most suitable way of obtaining an adequate level of dissuasion and reprehend the behavior of the offender is to make use of the collective action, the same way that the collective actions have proved to be superior because of the legitimacy that lies on the right to evidence of the relevant facts in order to characterize the incidence of the punitive damages and assess the degree of reprehensibility of the conduct.
Acesso aberto (Open Access)
O lucro do ofensor como critério de quantificação das indenizações por danos morais
(Universidade Federal do Pará, 2018-03-15) FAMPA, Daniel Silva; LEAL, Pastora do Socorro Teixeira; http://lattes.cnpq.br/3244282344643324
The present study aims to analyze to what extent the offender's profit can be considered a criterion in relation to the quantum of damages fixed by way of moral damages. It adopts the deductive method throughout the investigation, supported by bibliographical research and caselaw survey to confront the hypotheses of the work. In order to answer the problem question, it initially examines the interlocution between the functions of civil liability contemporaneously diffused. It considers compensation to be a dimension of the reparatory function, being essential to adapt this function to the regulations of moral damages, since these are incompatible with the logic of returning to the status quo ante. It contextualizes the reparation of damages in the constitutional system of prime protection to the dignity of human beings, gauging the effects that emanate from the incidence of the ideal of personalization in relations set among individuals. Through a research in the Federal Supreme Court’s virtual database of decisions, it reports the stages of the process of acceptance of moral damages in Brazil, from its unrestricted rejection to its insertion in the Federal Constitution of 1988. In addition, it discusses the most widespread attempts of their conceptualization, accepting, among the proposals that qualify them as a violation of human dignity, the one which is friendlier to the requirement of integral protection of individuals, since this expands the range of possibilities of legal goods that are compensated in case of violation. It acknowledges that the need for compensation for such damages represented the effective entrance door for "new" functions of civil liability in Brazil, since the equitable arbitration, as a model of quantification, grants the judges greater freedom, regarding to the stipulation of the quantum of damages, allowing them to consider criteria that cannot be considered reparatory. First, it examines the problem of quantification from the comparison between the ‘law pricing’ and ‘the equitable arbitration by the judge’ models, indicating their respective manifestations in the internal legal system. It investigates the main criteria of quantification adopted by the Brazilian Courts today, including consideration of the biphasic method, absorbed by the Superior Court of Justice in its law-cases. It explores the teleological connections that the offender's profit parameter holds with the civil liability functions, identifying the possibilities of a double dimension of the damage suffered by the victims in these cases. It concludes that the criterion investigated has a clear reparatory purpose in relation to the offender; therefore, it is not necessary to evoke the punitive or preventive function to support its applicability. Without prejudice to the preceding idea, it is possible to consider a punitive or dissuasive approach in cases of malice or gross fault by the offender, and it is essential that the judges observe, in stipulating the quantum of damages, the nature of the right which was injured, especially considering the extent of right-holders (whether individual or trans individual), which may cause changes in the quantum defined.
Acesso aberto (Open Access)
A prescrição nas ações de acidente de trabalho sob o enfoque da proteção à saúde do trabalhador
(Universidade Federal do Pará, 2015-07-08) MEIRA, Armando Dayverson Pegado; NASSAR, Rosita de Nazaré Sidrim; http://lattes.cnpq.br/2092928958819725
The prescription is an institute of legal science that imposes time limit for the holder of a subjective right to claim satisfaction of their right. It isintendedtoensure legal certainty in theprivatesphere of individualssince time is natural phenomenonthat interferes in relationsbetweenindividuals and thatmaymodifyorterminatethe legal heritage of people. However, thecollectiverelationshipsinvolvingenvironmentalissues and legal certaintytranslatesintocompliancewiththereparatory legal dutyatany time, for theenvironmentaldamageisconsideredtobemetaindividual and intergenerational. The labor accident, whichoriginates in labor relationships, causes damagetotheworkers' health and generatesthesubjectiverighttocompensation. AftertheConstitution of 1988, the Labor Courtbecamethejurisdictiontoprocess labor accidentlawsuitsfiledbyworkersagainstemployers. Fromthisjurisdictionarosethequestion as towhichstatute of limitationsshouldbeappliedtothecompensatoryclaims of workers for damagetotheirhealthresultingfromaccidentsatwork: if it shouldbethat of labor lawor civil law. However, thereis a doctrinalcurrentunderstandingthatthe labor accidentis a type of environmentalpollution, thatharmshumanwell-being, withharmfulconsequencesthat are trans-generational. Therefore, compensationclaims for thedamagescausedtoworkers' health in workplaceaccidents, isimprescriptible. In thisstudy, wewillinvestigatehowstatute of limitationsisappliedinthe legal relations of civil nature and labor nature as well as thereasonsnottoapplytheprescription in thecollectiverelationships of anenvironmentalnature. WewillalsostudyaboutwhatBrazilianlegislationunderstandsby labor accidents. It willthenbeverifiedwhattypes of damagetoworkers' health a labor accidentcan cause. Wewillalsobeanalyzingtheemployer'sliability in accidentscaused in the labor ambience. Afterthis, favorable legal arguments for thejurisdiction of the Labor Courtstojudgeimmaterialdamagesarisingfromtheworkrelationshipwillbepresented. Successively, thestudyaboutthe legal arguments for the use of limitationperiods, accordingtothe Labor Law and the Civil Law, theaction for damagesrelatedtoworkers' health in labor accidents, as well as thearguments for non-applicability of thistype of legal actionwillbeanalyzed. Finally, wewill explore the legal position of the Labor Court of the 8th Region and theiropiniononthesubject in question. In ordertodevelopthepresentresearch, the use of doctrinairetexts, articles of legal journals, relevantnationallegislation and relevantlaw cases onthesubjectunderstudy, wasdemanded. Thus, it isconcludedthatthe labor accidentis a kind of environmentalpollution. Whenintangibleassets are injured, theemployeedeservestoberepairedatany time, for notonlyhishealthisharmed, butalsotheworker and themembers of thisfamily´shumandignityisaffected. Thisisthefoundation of theRepublic of Brazil,essential for a mantohavequality of life.