Name: CARLOS ANDRÉ CASSANI SIQUEIRA
Type: MSc dissertation
Publication date: 10/12/2018
Advisor:
Name |
Role |
|---|---|
| AUGUSTO PASSAMANI BUFULIN | Advisor * |
Examining board:
| Name |
Role |
|---|---|
| AUGUSTO PASSAMANI BUFULIN | Advisor * |
| GILBERTO FACHETTI SILVESTRE | Internal Examiner * |
Summary: Despite the personalistic changes made in Brazilian Civil Law by the edition of the Federal Constitution of 1988 and by the edition of the Civil Code of 2002, there was no substantial change in legal and social treatment towards people with (mental) disabilities. To change this scenario, the New York Convention (2007) was internalized with legal constitutional status, through the Decree nº 6.949/2009. Its infraconstitutional regulation took place through the Brazilian Law on Inclusion of People with Disabilities (Law nº 13.146/2015), popularly known as the Statute of People with Disabilities. These new legal texts have made substantial changes in Brazilian Civil Law. Two of these modifications will be the subject of this research. The first one concerns changes about legal incapacitation hypotheses and the second one concerns legal changes about procedural instruments for protection of incapacitated people. The judicial law suit that recognizes incapacities in people was redesigned and it was also created a new legal institute, called Supported Decision Making. Therefore, through the deductive method and through the bibliographical and normative review, the present research intends to verify how the changes in the legal regime of incapacities were adequate to the new paradigm brought by the Convention and by the Statute. To do so, it is analyzed the legal history of the Brazilian Incapacities Civil Law Regime, from its creating on the eve of the Civil Code of 1916 until the arrival of the Civil Code of 2002 and the first perceptions about its outdatedness on this regard. Subsequently, it is explored the new constitutional system of 1988, from which the Principle of Human Dignity as a foundation of the Brazilian State. From this principle, fertile soil was created in order to implement the changes introduced by Law nº 13.146/2015 and by Decree nº 6.949/2009 on the Brazilian Civil Law Incapacities System, thus altering the legal hypotheses of incapacity. Finally, as a result, the procedure of the procedural instruments created for the protection of incapacitated people is analyzed in order to verify how they bring legal and social effectiveness to the new treatment intended for people with disabilities, which is a consequence of the creation of a renewed Brazilian Civil Law of Incapacities.
Keywords: Brazilian Law on Inclusion of People with Disabilities.Statute of People with Disabilities. New York Convention. Incapacity. Declaration of Incapacity. Supported Decision Making.
