As novas nuances neoconstitucionalismo: uma análise da sua aplicação nas relações privadas

Abstract

This study aims to address the issue of fundamental rights within the current legal framework regarding the application of such rights within the private relations. It will be shown through a hypothetical-deductive approach and a historical-evolutionary procedure that such an application must be made through the use of the proportionality principle, as several bibliographical research points. Thus, it is possible by means of the solution of the weighting technique for possible conflicts that exist between these standards, that is, with the values reflection a fundamental rule over the other. The legal argument is the validator of such a decision, which will be valid for the principle of human dignity, which is the main north in resolving such conflicts. It will still be shown as fundamental rights won this highlight within the current legal system, showing its evolution from jus naturalism, through positivism, to find support with neoconstitucionalist movement (post-positivist) that came with the end of World War II. Show It will also milestones that influenced the imposition of this new chain and its main meanings, culminating thus a concept that is more accepted. It will also be treated which are fundamental rights and what is its difference in relation to human rights and human rights, as it did its emergence from the French Revolution and the kind of effectiveness more accepted, in spite exist to mediate chain and the immediate chain, this is subdivided horizontally and vertically. Remain shown that the most correct is the theory of immediacy, since such rights should always be secured inside a concrete situation, being the judicial decision that will be valid law "most important" in relation to another.