O princípio constitucional da função social da propriedade em face à autonomia privada: uma análise da jurisprudência do Superior Tribunal de Justiça

Abstract

This work analyzes the constitutionalization of private law, by verifying the application of the principle of the social function of property in the face of private autonomy. After the occurrence of the two World Wars, the States realized the imminent need to readjust their Constitutional Charters, given the arbitrary acts committed within the law. The law, then, became closer to morality, with values of mandatory observance being introduced into the constitutional norms, referring to the ideals of the Democratic Rule of Law. The question is, therefore, what is the influence of the constitutional principle of the social function of property on private relations, with a view to mitigating individualism in the face of the importance given to the collective interest, from the perspective of the jurisprudence of the Superior Court of Justice. The general objective is to analyze the influence of the constitutional principle of the social function of property on private relations, from the perspective of the jurisprudence of the Superior Court of Justice. To this end, it seeks to describe the phenomena of the constitutionalization of private law, neoconstitutionalism and the principle of the social function of property, to then verify the constitutionalization of private law through the influence of the principle of the social function of property, analyzing the jurisprudence related to civil law of the Superior Court of Justice from 2021 to 2022, as well as through the investigation of the autonomy of will in the context of private relationships and the consideration of principles. The deductive method is used, starting from the general analysis of the phenomenon of neoconstitutionalism, investigating the concept of the principle of the social function of property, and then analyzing how the influence of this principle on private autonomy occurs, by verifying its application. from the perspective of the jurisprudence of the Superior Court of Justice. The procedural methods are historical and structuralist, using the first to analyze the position occupied by the Federal Constitution within the scope of the Brazilian legal system and in relation to other infra-constitutional norms, and the second to conceptualize the principle of the social function of property and the its emergence in Brazilian law. The research techniques are indirect documentation, through the jurisprudence selected for analysis, as well as the legislation of the national legal system that will form the basis of this work, and bibliography, through research into doctrines, theses, dissertations, monographs and scientific articles already published. It is concluded that the phenomenon of constitutionalization of private law, analyzing the jurisprudence of the Superior Court of Justice, occurs to the extent that the rights of the civil system, previously considered as almost absolute, are mitigated in the face of constitutional provisions. In this way, the Federal Constitution of 88 exerts direct influence in the area of civil law, binding it to its norms and definitions