A observância dos direitos fundamentais no modelo constitucional pátrio e do princípio da boa fé objetiva nas relações jurídico privadas

AUTOR(ES)
DATA DE PUBLICAÇÃO

2007

RESUMO

This research is about the observation of the fundamental rights in the constitutional patriotic model and of the principle of the objective good faith in the juridical-private relations. At the conception of the liberal paradigm, still at the origin of the modern constitutionalism, the fundamental rights had been conceived as mens rights in view of the State, especially about their freedom. At the last times we observed, however, a vertiginous growth of the other society sectors power, not always watching out for the existence of a document about rights and individual guarantees, that are despised at last, threatened and even violated in the middle of the private juridical relations. In this context, there is no way to support the basic grasp that the fundamental rights have as only addressee the State, it means, there is no what support the basic grasp that only the individual-state relations are developed under protection of the fundamental rights, because even the ones that approach to the individuals each other, individually or into groups they receive the power of this rights. We discuss if this vinculation from the individual to the fundamental rights happens in the direct and immediate way or in a indirect way, through the mediation of a legislator and a judge, at this last hypothesis, through the carrying out of the general clauses, that today are legislative technique on current use in Brazil being highly used since the elaboration of new Civil Code. The apply of the fundamental rights under the primate-ship of human person dignity, because an imperative for readjust of the rules at the private rights system and its renovation, to deal with new demands that appears everyday at the society. The principle of the objective good faith and apply of the fundamental rights at the private relations are related to process of the resume the ethical conscience at the Civil Rights, especially about the obligation rights, beewg out of the aspect strictly voluntary and related to patrimony, searching for carrying out the supreme valves inside the constitutional text. So, we intend to demonstrate that the apply of the objective good faith principle means a readjust of the institutes sculpted at the Civil Code, from the carrying out of its meaning, up to the real case and by the subject perspective of the compulsory relation.

ASSUNTO(S)

direitos fundamentais - dissertaÇÕes direito constitucional

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