Desapropriação da propriedade privada: a efetividade do Princípio da Função Social.

Abstract

Considering the regulation of the property law, the principle of social function and the private property expropriation institute by the Constitution of the Republic of 1988 and by the current Brazilian Civil Code and lessons given by the scholars on the said subjects, is questioned: the expropriation of private property corresponds to a legal mechanism that ensures effectiveness of the principle of social function of property ? The research is justified by the need to demonstrate that expropriation is an element of guaranteeing the social character of the property right and of the realization of the supremacy of the public interest over the private and not an arbitrary instrument of State intervention in private property. Its general objective is to analyze the expropriation as an instrument of effectiveness of the principle of the social function of property and its specific objectives to study the property law as it is disciplined in the legal order of the country; to examine the assumptions, procedures and purposes of the expropriation of private property and to analyze the effectiveness of the principle of the social function of private property through the expropriation institute. For this, utilizing the deductive method and the bibliographical and documentary techniques, to formulate a theoretical and conceptual framework to better understand the theme. Thus, the first chapter develops a research on the historical evolution of property rights, the way how they are disciplined in Brazilian law, the forms of acquisition of mobile and immovable property, and on the ways of losing property. The second chapter focuses on explaining state intervention in private property. In this way, it examines each of the species of intervention, restrictive and suppressive, emphasizing the expropriation of private property. The third chapter deals with the principle of the social function of property, contemplating its historical evolution, the ideas that guide it and presenting initial notions about it. In this way, is indended to contribute with clarification about the effectiveness of the social function of property through the institute of expropriation of private property. Notes that expropriation is an efficient way of guaranteeing the social function of property, since on the one hand it assures the supremacy of the public interest over the private while preserving the owner of the property from the total loss of the value of the thing by providing for fair compensation.