Abuso de direito / Abuse of right
AUTOR(ES)
Thiago Rodovalho dos Santos
DATA DE PUBLICAÇÃO
2009
RESUMO
This study aims to examine how it is inserted in the current Brazilian Civil Code the figure Abuse of Right, making a parallel with the previous legislation and comparative law. In this context, pretends to indicate that, in fact, we live legal situations that give us legal positions [active or passive]. So, the exercise of these legal positions is limited by its social function [ratio essendi of the legal position economic or social order], and by the good faith that should govern the practice of all legal actions. Therefore, there is not an absolute legal position [there is not an absolute subjective right]; on the opposite, we have relative legal positions, and their protection should be understood [contextualized] within the legal system, in the light of values that inform the legal system and the very purpose of the legal position that it intends to exercise. Thus, any exercise that distance of social or economic order, or that is in breach of good faith, will constitute an abusive exercise in the legal position or in an abuse in the exercise of a legal position [abuse of right]
ASSUNTO(S)
função social regular direito civil abuso de direito exercise posição jurídica exercício regular do direito direito -- filosofia rights finalidade do direito boa-fe (direito)
