Proteger sem incapacitar: o diálogo necessário entre a tomada de decisão apoiada e o regime de invalidades do Código Civil

• Autor(a) principal: Soares, Thiago Rosa
• Data de Publicação: 2020
• Outros Autores: [e-mail]
• Tipo de documento: Dissertação
• Idioma: por
• Título da fonte: Biblioteca Digital de Teses e Dissertações da UERJ
• Texto Completo: http://www.bdtd.uerj.br/handle/1/19933
• topic: Person with disabilities; Legal capacity; Defects of consent; Invalidity; Supported Decision-Making (SDM); Pessoa com deficiência; Capacidade; Invalidade; Tomada de decisão apoiada (TDA); Vícios da vontade; CIENCIAS SOCIAIS APLICADAS::DIREITO::DIREITO PRIVADO::DIREITO CIVIL

The Supported Decision-Making (SDM) (tomada de decisão apoiada – TDA) is a measure of support in exercising legal capacity of persons with disabilities. Considering the goal of implementing in Brazilian Law the program of the Convention on the Rights of Persons with Disabilities (CRPD) – which, adopting the social model of disability, establishes legal capacity on an equal basis with others (article 12) –, the SDM emerges as an alternative to those who seek formal assistance to perform civil acts without having to resort to guardianship in a procedure of interdiction. This study, based on the methodology of the Constitutionalization of Private Law, is dedicated to the investigation of the structure and the function of the new institute, tracing the distinctive lines from other institutes which perform similar functions, as well as to the link between the SDM and the invalidities regime of the Civil Code. The support offered does not affect the capacity of the person with disability, which allows one to question whether abandoning guardianship wouldn’t put the beneficiary of the new measure in a situation of deprotection, regardless of his/her vulnerability. One of the main forms of protection of the ward consisted in denying the legal effects of the acts personally performed by him/her, without assistance or representation of the guardian. This study also investigates the possibilities of invalidation of the legal transactions executed by a person with disability who takes part in an SDM relation (supported person). The controversial paragraphs (§§4º and 6º) of article 1.783-A of the Civil Code, which part of the doctrine interprets as a cause of invalidity of the legal transactions, are analyzed. Then, the delicate balance between the reliance of those who deal with persons with disabilities and the protection that might be conferred to them by the legal order are investigated. Finally, the possible mechanisms of protection of the vulnerability are evaluated, especially the regime of invalidity due to the defects of consent and to the denominated natural incapacity.