Dano existencial no direito do trabalho brasileiro: entre expansão e incompreensão

• Autor(a) principal: Xavier, Eduardo de Souza
• Data de Publicação: 2019
• Tipo de documento: Dissertação
• Idioma: por
• Título da fonte: Biblioteca Digital de Teses e Dissertações da PUC_RS
• Texto Completo: http://tede2.pucrs.br/tede2/handle/tede/9193
• topic: Direito do Trabalho; Reponsabilidade civil; Danos extrapatrimoniais; Dano existencial; Labor law; Civil liability; Non pecuniary damages; Existential damages; CIENCIAS SOCIAIS APLICADAS::DIREITO

The present dissertation aims to analyze the relevance of existential damages in Brazilian labor law. In Brazil, existential damages have been applied in the Labor Law area expressively, especially in cases of excessive or exhaustive working hours. Law 13.467, of 2017, recognizes as a cause of non pecuniary damages the injury to the existential sphere of the person, legally recognizing the existential damages in Brazilian legal system. However, the criteria to apply this category have not yet been systematized in Brazilian Labor Law. There has been considerable disparity in its use in doctrine and jurisprudence, materialized in an uncritical expansion of the original concept from Italian law, as well as in some misunderstandings in its categorization. The issue is analyzed from a theoretical and jurisprudential point of view, allowing na understanding of the specific criteria of this category of damage within civil liability, as well as their possibilities of application in legal practice. The study analyzes the conceptual foundations of existential damages and its origin in the Italian and Brazilian legal contexts, considering their specificities in Labor Law. Secondly, the dissertation presents the jurisprudential development of existential damages in both countries – which allows to glimpse the differences and similarities between the two legal contexts. The research concludes that the use of existential damages as an autonomous category, within the scope of Brazilian Labor Law, is not a necessity imposed by the legal system. Unlike in Italy – whose civil liability system showed significant limitations to the recognition of non pecuniary damages –, in Brazil, such damages could be included in the generic category of moral damages. However, the systematization of non pecuniary damagess and the recognition of autonomous categories, such as existential damages, are adequate tools for the analysis and individualization of damages. In this perspective, the dissertation points to the relevance of the use of existential damages in Brazilian Labor Law, based on the protection of the dignity of the human person and the fundamental rights.