A responsabilidade civil ambiental e as formas de reparação do dano ambiental: aspectos teóricos e práticos

AUTOR(ES)

Marcos Destefenni

DATA DE PUBLICAÇÃO

2004

RESUMO

The present study focuses on environmental damage and on manners of repairing it, attempting to reflect on the behavior of legal players and decision-makers, besides the public authorities involved in the lawsuits. After concluding that environmental damage is one the most serious threats to the dignity of human being, and subsequent to the conclusion that the right to an ecologically balanced environment ought to be faced as a fundamental right, constitutionally guaranteed (Brazilian Federal Constitution, clause 5th), the present study analyses ways of repairing these losses. It holds the thesis that torts must have a mischief prevention function as well as inhibiting one, endorsing the preservation of the environmental components. On the other hand, it supports the idea that the environmental damage redress, apart from being integral, must also obey a rigid hierarchy, given that the choice on how to deal with it cannot be arbitrary. Whenever possible, a specific remedy should be issued, once money recovery - the classical form of repairing damage in private relations - is the worst manner to solve environmental problems. Thus, it has to be applied as the last resort, or along with other means. Half way money recovery and specific remedy is to trade off the environmental damage, a technique to be employed whenever the specific solution becomes impossible. however, the adoption of a remedy with equivalent ecological importance, within the same ecosystem where happened the harmful act, should only occur when specific reparation emerges unfeasible. In the sequence, some environmental settlements, signed by local public authorities of São Paulo, will be analyzed and criticized. The final conclusion is that the specific remedy pattern should be mandatory, due to the material and procedural law reasons discussed in this dissertation

ASSUNTO(S)

reparacao por dano ambiental responsabilidade por danos ambientais reparacao civil direito

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