As tutelas dos direitos da personalidade no código de processo civil

• Autor(a) principal: Hibner, Davi Amaral
• Data de Publicação: 2019
• Tipo de documento: Dissertação
• Idioma: por
• Título da fonte: Repositório Institucional da Universidade Federal do Espírito Santo (riUfes)
• Texto Completo: http://repositorio.ufes.br/handle/10/11316
• topic: Rights of the personality; Specific judicial provision; Due process of law; Access to Justice; Relativity of the procedure; Direitos da personalidade; Tutela específica; Flexibilização do procedimento; Direito Processual Civil; Direito privado; Direito civil; Processo civil; Devido processo legal; Acesso à justiça; Tutela jurisdicional; 340

This research describes the personality in its formal and material aspects. It analyzes the dispositions in the Civil Code on the rights of the personality, highlighting its importance for the protection, development and promotion of one‟s dignity. It relates such rights to the protection of the citizenship and the people in a condition of vulnerability, and describes the damage resulting from the violation to the rights of the personality. From the Civil Code, from the Brazilian Civil Procedure Code and legal literature, it analyzes and identifies seven judicial provisions destined to the protection of the person‟s essential attributes: inhibitory, whose aim is to avoid the practice of illicit acts; ceasing, destined to prevent the acknowledgement or the propagation of illicit acts; reintegratory, or the removal of illicit acts, destined to the elimination of wrongful conduct of concrete reality; reimbursing, in the specific form, whose aim is to recompose the violated good through nonpecuniary means; compensatory, related to pecuniary restitution of patrimonial damage and destined to mitigate the extrapatrimonial damage through pecuniary amount, which acts as mitigation to the victim; and the disgorgement of profits, whose aim is to remove from the wrongdoer‟s patrimony the economic profit improperly obtained from the violation of the rights of the personality. It emphasizes the ranking that distinguishes specific and general judicial provisions, having as a criteria the result obtained by the process in the plan of substantial law. Considering the extra-patrimonial character of the personality rights, it investigates, among the kinds of judicial provisions, which are able to guarantee the suitable protection of the fundamental aspects of the person, as to characterize the concession of the specific judicial provision. It demonstrates that, in attention to the needs of the substantial law, the Civil Procedure Code establishes the primacy of the specific judicial provision in the protection of the personality rights, avoiding its conversion into loss and damage. It verified that, despite the broad use of the compensatory judicial provisions, the inhibitory, reintegratory and restauratory judicial provisions are more suitable to the protection of one‟s existential interests. Moreover, from the due process of law to the access to justice it analyzes if it is possible to mitigate the rules on the alterations of the objective elements of the demand, to allow the total protection of the person‟s essential attributes. Thus it investigates if it is possible to mitigate the principle of the congruence between the claim and the sentence, aiming at the proper protection of the substantial law. It is stated that, with the balance and the concretization of the due process of law, it is possible to mitigate the procedural rules on the modification of the claim, as well as the correlation principle, aiming at granting the judicial provision on the personality rights. Finally, the use of proper procedural techniques and the relativization of procedural rules may contribute for the process to be an effective tool in the protection of one‟s essential attributes.