Name: GUILHERME VALLI DE MORAES NEVES
Publication date: 29/05/2019
Advisor:
Name |
Role |
|---|---|
| GILBERTO FACHETTI SILVESTRE | Advisor * |
Examining board:
| Name |
Role |
|---|---|
| GILBERTO FACHETTI SILVESTRE | Advisor * |
| THIAGO FERREIRA SIQUEIRA | Internal Examiner * |
| TIAGO FIGUEIREDO GONÇALVES | Internal Examiner * |
Summary: This study analyzes the cognitive limitation in typical writs of possession regarding the abstract
and generic exclusion of the exceptio dominii, that is, the impossibility of discussion in the
injunction procedure regarding other rights of ownership effectiveness on the thing (jus
possidendi). Traditionally, the understanding is that in writs of possession of new force, only
the jus possessionis (the possession itself) can be discussed. In this regard, the research focused
on the option made by the Brazilian legislature for the treatment of the possessory phenomenon
and the way in which the judicial mechanisms for its protection are put, more specifically the
writs of possession. In order to do so, it was necessary to approach the possession as an
autonomous right guarenteed by the law Worth of judicial protection, and treated the institute
from the main legal theories that sought to explain and conceptualize it, namely: subjective
theory, objective theory and social theories. After verifying the legal treatement of that kind of
exception, the arguments found in legal literature to justify its prohibition, and taking in
consideration the elements tha justify the protection of possession itself, the research revealed
that the current understanding on the subject is not the better in the context of contemporary
civil proceduralism. It has been revealed that the assumptions used - such as the need to protect
the possesion in an effective and autonomous way and safeguarding social peace - are true, but
do not lead to adequate and desired operability in the legal sphere regarding the existing
procedure. This conclusion was reached when we analyzed the effectiveness of possession writs
under the consideration of other fundamental values of the judicial procedure, especially of its
reasonable duration, which drove us towards a new proposal to understand the domain
exception within the possessory actions, making it admissible in the second stage of the
procedure, since the article number 558 of the Code of Civil Procedure determines the
transmutation of the special possessory procedure to the common procedure in which cognition
may be extended. At the end, it finds that this proposal depends only on a new hermeneutics
about the institutes, which is perfectly compatible with the current legislation and with the
various theories and perceptions of the possessory phenomenon, simply by neglecting some
overly formalist preconceptions that brings no benefit for the operability of the legal categories
and the satisfaction of possessory conflicts sub judice.
KEY WORDS
Possession Protection. Writs of Possession. Ownershio Exception. Reasonable Length of the
Procedure. Effectiveness.
