FIGUEIREDO, F. N. S.; http://lattes.cnpq.br/2239993899789726; FIGUEIREDO, Francisco Noan de Sousa.
Résumé:
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.