NUNES FILHO, L.; http://lattes.cnpq.br/1661164984703189; NUNES FILHO, Luiz.
Résumé:
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.
