Responsabilidade Civil dos estabelecimentos bancários no pagamento de cheques fraudados.

Abstract

This research aims analyzing the civil liability rules applicable to banking institutions in the event of payment of fraudulent checks, extremely current theme, object of an elegant discussion in the doctrine and jurisprudence, and that brings with it an evolutionary trait of civil law, that with the advent of the 2002 Code, began to devote more collectivized standards, to admit the coexistence of theories of guilt and the risk of harmonic and non-hierarchical way. Thanks to the effects of legal dialectic, the current Civil Code transmuted the core of civil liability rules, which previously concentrated on the individual seeks to blame for the damage caused to others, but is currently searching for a person responsible for compensation by establishing the principle that no harm should be without compensation. In the specific case of banking institutions, apply the rules of objective liability, based on the theory of economic risk, or, in other words, the banks respond without fault, for damage caused to holders pursuant to acts linked to the contract the minutes. In fact, bank contracts were considered as consumer contracts, attracting application of the CDC, since the holders are economic recipients of banking services. Within this context, it enters the so called "check agreement" whose practicality, did it become usual in every corner of the country. Swindlers then created highly sophisticated techniques to innovate cunningly check the information with the purpose of obtaining illegal advantages. Fraud on checks, analyzed on the prism of liability, generated Dissidia case law, since even the objective of liability rules seemed, in some cases, insufficient to identify a person responsible for compensation, considering the "fault zero" of the banking establishment and the physical impossibility of finding the swindler, directly responsible for the damage. The controversy was resolved with the enactment of Precedent. 28 of the prevailing jurisprudence of the Supreme Court, which states: "the drawer bank accounts for the payment of forged check, except malice or fault of the account holder." The aim is to take this opportunity to analyze the reflections that led to the enactment of the score sheet. Through a dialectical approach, theory will be developed, in order to demonstrate that the fault is still the core of civil liability; antithesis, which is the need to adopt, in certain situations, more objective and collectivized rules, mitigating guilt, in order to prevent losses remain without compensation; and synthesis, pointing out how the theories of guilt and the risk can coexist on the civilian plane. The methodological approach will be historical, deductive and monographic.