A exclusão da sucessão à luz dos direitos fundamentais e da teoria geral do direito sucessório: estudo crítico-comparativo entre a indignidade e a deserdação / A exclusão da sucessão à luz dos direitos fundamentais e da teoria geral do direito sucessório: estudo crítico-comparativo entre a indignidade e a deserdação




The scope of this document is to obtain the Masters Degree in Civil Law Compared in the Law School of Pontifícia Universidade Católica de São Paulo (PUC/SP), under guidance of professor Dra. Rosa Maria Barreto Borriello de Andrade Nery. The study begins with an introductory approach to General Theory of Inheritance, trying to rescue the concept, content, and nature of the constitutional hereditary phenomenon, as well as qualify the subjects and the objects that set up this civil relationship. Similarly, it sought to distinguish and define faticos assumptions (death) and legal (legitimate, lawful and unlawful) or the voluntary transmission (wills, codicil and contractual). Because the right of succession is recognized as citizens fundamental right, the deprivation, total or partial, is beginning to be examined from the viewpoint of the effectiveness of civil rights constitutional (fundamental), so that the private law is the realization or protection to the materialization of the principles and values set up in the Magna Carta. Being the lack of the right hereditary an authentic penalty of civil nature, a preliminary sketch was drawn to identify the attributable subject, distinguishing civil imputability from civil incapacity as well as from penal imputability, besides bringing comparisons with other punishments, such as revocation of donation by ingratitude and removal of maintenance procedure by unworthy. Since the beginning, can be found in more primitive societies, as in Babylon (Code of Hammurabi) or India (Code of Manu), sanctions that exclude equity shares of the successor of the deceased, born in Roman Law, in particular, two legal institutions, the indignity succession and disinheritance, consisting of different forms of punishment that is criminal behavior or that anti-legal on de cuius or your family. Approved by the Romans, they were developed in medieval law (Ius Commune) and modern (Encodings of Civilians nineteenth century), in form and substance as designed until the present day. Although with similar nature and same objective, the indignity inheritance and desinheritance are diverse figures that have base, structure and own rule, can not be equated or differentiated grossly. For this, including in regard to foreign law and its procedual outlines, without forgetting, however, the issues involving the coexistence of both institutes in the legal system. Finally, after the proposals submitted which dealt in Brazilian Congress, it is presented an idealized construction of de lege ferenda


indignidade sucessória direitos fundamentais desinheritance direito civil law of succession indignity succession removal of maintenance procedure by unworthy deserdação exoneração da obrigação alimentar por procedimento indigno civil imputability deprivation of legitimate revogação da doação por ingratidão revocation of donation by ingratitude privação da legítima imputabilidade civil direito das sucessões heranca e sucessao effectiveness of civil rights

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