Propriedade rural, posse e meio ambiente: uma ponderação harmoniosa

• Autor(a) principal: Albuquerque, Ana Rita Vieira
• Data de Publicação: 2011
• Tipo de documento: Tese
• Idioma: por
• Título da fonte: Biblioteca Digital de Teses e Dissertações da UERJ
• Texto Completo: http://www.bdtd.uerj.br/handle/1/9231
• topic: Possession; Property; Environment; Balance; Harmonic; Fundamental rights; Propriedade; Posse (Direito); Meio Ambiente; CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO::DIREITO PRIVADO::DIREITO CIVIL

The present thesis has as its objective the defense of the relation between the rights to possession, to property and to environment and the possibility of a harmonic balance in the case of disequilibrium between those rights. This construction was done under the sway of civil- constitutional law. In the effort to reach the purpose of this work, it is employed the analytical, empirical and normative dimensions. The analytical dimension has the objective to investigate the juridical concepts involved in the research, especially in relation to the property and to its environmental function. The relation between the analyzed concepts appears trough the analysis of the environmental-social function of the possession, the property and the environmental legislation that reflect in this institutes. The fundamental right to the environment is studied as a right and a duty of everyone in obedience to the rule disposed in the article 225 of the Constitution of 1988, and, at this point, it is possible to initiate legal actions against the private owners, not only against the Estate. The normative and empirical dimension presents a practical approach focusing especially in the jurisprudence of the Brazilian federal Supreme Court and of the Superior Court of Appeal (STJ). It is accentuated the possibility of a harmonic balance between the rights to property, to possession and to environment and the necessity that those rights find a balance in their effectiveness, also through the principles of economic law. Through the balance of the normative principles in collision, it is possible to reach, more efficiently than in the traditional model of subsumption, an adequate and motivated answer to the hard cases, especially when considering the effectiveness or the restoration of the balance between the possession, the property and the environment. The objective is to concretize the fundamental rights, in conformity with the exigencies of the post-positivism trough the approximation between law and ethics, looking forward to reach Justice in solving hard cases.