Análise constitucional da presunção absoluta de abandono da propriedade imóvel no diploma civil brasileiro.

Abstract

This paper aims to analyze the constitutionality of the absolute presumption of abandonment of the property by §2 of Article 1276 of the Civil Code, against the affront to constitutional principles. Dealing with the discussed theme, it is proved that the absolute presumption of abandonment of property in the established manner by the Civil Code aimed to give effectivenessto the principle of the social function of property, to the extent that a presumed abandoned property, also presumes itself as without social purpose. However, it appears that the collated device while supportingon an absolute presumption offends the constitutional principles of a legal process, no confiscation and guarantee itself of the property, to establish a way of loss of private property, in favor of Public Power without respecting the law with full defense and contradictory to what should assist to the holder of the property. As methods of procedure the historical-comparative and evolutionary proposing a hypothetical-deductive approach to the topic are used, the technique of indirect research investigates the the theme by literature, with analysis of doctrine and law. Addressing to this, note that it is necessary to analyze the minutiae of the concrete case, by a judge of weighing which makes the application of the rule in light of the Principle of Reasonableness, as suitable as possible with the device now analyzed with the constitutional ordering.