O sistema semi-aberto de normas e o direito de família: uma análise dos conceitos legais indeterminados no âmbito do direito de família

AUTOR(ES)
DATA DE PUBLICAÇÃO

2010

RESUMO

This research follows the path of the science of law towards the creation of opening mechanisms of the legal system, and therefore it encompasses, specifically, one of those mechanisms, the undetermined legal concepts. The investigation of the subject comprises both theoretical and practical aspects, with the analysis of samples of undetermined legal concepts used by the drafters of the Section of Family Law of the 2002 Civil Code. The first chapter begins with the historic roots of the codification and of the closed-end system, exploring the problems arising out of such a technique of drafting law. In the second chapter, the opening and reallocation of the law system are discussed in a comparative analysis with the closed-end law system. Subsequently, we analyze the system of the 2002 Civil Code, the spine of Brazilian private system. The third chapter provides a pure theoretical discussion of the undetermined legal concepts: its application as a lawmaking technique, in comparison with general clauses, aspects referring to language and issues regarding the nature of the acts applying the undetermined legal concepts. We analyze philosophical issues and social effects of the subject. The opening texture of the law is a playing spot left by the drafter. By including undetermined legal concepts in the law, the lawmaker creates an instrument to the judge se he can adapt the law to the facts. The practical side of this work begins with an introduction to family law, in both constitutional and regulatory levels, focusing in the Civil Code. The family law principles and the issue of affection deserve attention. In addition, expectations to the future are discussed, based on the Project of Law No. 2,285/07 (Statute of Families). The last part, finally, highlights some of the undetermined legal concepts of the Civil Code, as to family law, with the purpose of showing how and how often they are applied, and the effects they produce in the system

ASSUNTO(S)

conceitos legais indeterminados sistema jurídico aberto direito de família código civil direito civil open-end law system undetermined legal concepts family law civil code

ACESSO AO ARTIGO

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