Principio da vulnerabilidade : fundamento da responsabilidade civil objetiva por violação ao direito à intimidade genética nas relações de consumo e de emprego no Brasil contemporâneo.

AUTOR(ES)
FONTE

IBICT - Instituto Brasileiro de Informação em Ciência e Tecnologia

DATA DE PUBLICAÇÃO

06/05/2011

RESUMO

This dissertation was elaborated by bibliographic research and deals with pertaining aspects to the kind of civil accountability by violation to the right of genetic privacy in expenditure and work relationship. Through extensive interpretation of the right to privacy, fixed on article 5th, item X, of the Federal Constitution of Brazil of 1988, corroborated by the human dignity principle, that only became visible because of the technological advances, specially in Medicine and Genetics fields. It is worked inside a transition paradigm: the positivist way of facing the Law to the post-positivist, in which the Law is flexible, permeable to the values, the ethics and the notion of justice, granting special den to the principles in the legal normativity, scaping, thus, the reductionism of the right to the Law. The use of genetic information in an undue way constitutes discriminatory practice, be it in the work or expenditure relationships, even in the pre-contractual fase. It is detached, thus, of the individualist nature of the Law of the right of genetic privacy to invastigate it through a macro-bio-ethic point of view, under the prisma of exclusion and marginalization, that its violation may produce, specially in peripheric countries as in Brazil. It is important to find accountability ways that inhibits the undue pratice of access to genetic information to incompatible ends with the human rights and that, at the same time, ensure the due reparation to the victims. It is imperious to discuss, therefore, what is the ground of the duty to compensate that is best consistent with the vulnerability, imminent characteristic in one of the poles of the work and expenditure contracts: the guilt, the risk, the human dignity or the vulnerability itself, in its bias principle. As an end, we can affirm that the genetic privacy constitutes personality right, which, once violated, would imply in moral damage in re ipsa, without harm to the moral damage measured, may, both kinds of damage, reach a third party by reflex.

ASSUNTO(S)

reflex privacy principles genetic post-positivism positivism law reflexo moral material dano objetiva civil responsabilidade consumo emprego vulnerabilidade genética intimidade princípios pós-positivismo positivismo direito ciências sociais aplicadas expenditure job vulnerability responsibility civil objective damage moral

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