EXPROPRIATION: MATERIAL ASPECTS, COGNITIVE TECHNIQUE AND PROCEDURE STABILITY
Name: LORENZO CASER MILL
Publication date: 11/08/2023
Examining board:
Name |
Role |
|---|---|
| GILBERTO FACHETTI SILVESTRE | Advisor |
Summary: This research aims to situate the expropriation in the 1988 Constitution and the 2002 Civil Code system, considering that the main laws on the subject — Decree-Law nº 3.365/1941 and Law nº 4.132/1962 —, continuously amended over the decades, need to dialogue with currently ac-cepted conceptualisations of other legal institutes, such as possession and property, as well as to be compatible with the purposes of the Brazilian State. To this goal, a review of national and foreign legal literature is used, as well as jurisprudential research in superior courts and in state and federal courts. The problems to be addressed are as follows: in the first part, focused on substancial aspects of expropriation, (i) to define the elements that, for the Brazilian legal sys-tem, necessarily integrate the concept of expropriation; (ii) to delimit the difference between the expropriation of the right to property and the expropriation of the right to possession; and (iii) to systematise the consequences of expropriation on other property rights. In the second part, aimed at procedural issues, (iv) to understand, in view of the cognitive limitation imposed by articles 9, 13 and 20 of Decree-Law nº 3.365/41, the relationship between the object of cog-nition, the object of the process, the object of the judgement and the object of the res iudicata in the context of the expropriation procedure; (v) to identify the procedure to be adopted in case of doubt about the domain after the price fixed in the judgement has been signed; (vi) to verify, from the perspective of the theory of special procedures, the relevance or not of the court’s cognitive restriction imposed on the expropriation procedure; and, finally, (vii) to detect on which matters the authority of res iudicata falls when the judgement on the merits is rendered, as well as analyse whether another type of procedural stability is conferred on the other decisi-onal acts of the expropriation procedure. Thus, this research seeks to contribute on the themes of property and possession rights, the object and dominial repercussions of expropriation, the theory of special procedures, judicial cognition and procedural stabilities; and, as for practical contributions, the research sought to offer the legal community an improvement of the proce-dure that deals with one of the most serious state interventions on the sphere of rights of the people, presenting solutions to issues arising from the legal text and analysed in a divergent way by the literature and the Judiciary over the last decades.
Keywords: Expropriation. Administrative act. Property rights. Court cognition. Procedural sta-bilities.
