Indenização do dano moral e sua função preventiva pela teoria do desestímulo

• Autor(a) principal: Yizuka, Karoline Herbert
• Data de Publicação: 2018
• Tipo de documento: Trabalho de conclusão de curso
• Idioma: por
• Título da fonte: Repositório Universitário da Ânima (RUNA)
• Texto Completo: https://repositorio.animaeducacao.com.br/handle/ANIMA/6922
• topic: Indenização do dano moral; Teoria do desestímulo; Função preventiva; Indemnification of moral damage; Discouragement theory; Preventive function

The quantification of compensation for moral damages is currently one of the greatest difficulties in forensic practice. The constant increase in indemnity actions for moral damages reveals the ineffectiveness of the social function of civil liability while it is aimed at preventing damages. The present work analyzes the functions that the moral damages have to implement nowadays so that they can contribute to the reduction and prevention of damages without departing the primary reparatory function. The method of approach used is that of deductive thinking and qualitative analysis. The procedure method applied is monographic. The technique of bibliographic and documentary research is used, where doctrine, normative prediction and jurisprudence regarding the indemnification of moral damage are examined. In order to do so, to verify if they provide and use, respectively, criteria for fixing the indemnification quantum able to achieve both reparation and prevention. This way forming the double nature of compensation for moral damages, legal nature recognized by the doctrine and the courts. It results in the Discouragement Theory, which the obtained analysis and criteria are used for the quantification of compensation for moral damages, helping in the achievement of the preventive / discouraging character.Also, the punitive institute for damages of the common law had been presented, which influenced the construction of the Discouragement Theory in order to expose its main aspects and to draw the differences between the institute and the theory. It is worth noting that Discouragement Theory has been cited by jurisprudence for a long time, however, in the observation of some judges of the Court of Justice of Santa Catarina, only its rhetorical application was verified, without actually considering the factors indicated by the theory and a critical judgment by the magistrate. Considering this aspect, the study intends to point out the importance of the adequate valuation of the subsidies offered by the Discouragement Theory, and the compatibility of this institute with the Brazilian legal system, refuting contradictory arguments, which are not solid enough to survive. It is also intended to demonstrate that the application of the Discouragement Theory in the arbitration of indemnity weighed against the principles of proportionality, reasonableness and fairness, is an instrument capable of effecting the preventive function and consequently collaborating to reduce the compensation actions for moral damages. Besides solving the question about the difficulty in the quantification of the indemnity for presenting the criteria to be considered by the judge.