Da juridicidade do fator punição na liquidação da indenização por danos morais no Brasil

Abstract

This paper examines the possibility of using punishment as a quantification factor of damages for pain and suffering in the brazilian context. In this sense, initially, it makes a basics survey of the General Theory of Law, with emphasis on the institution of punishment, then it joins in the study of the functions of civil liability and, therefore, the main subject of the work, culminating with a critical view on the compatibility of the punitive element with the homeland civil systematic, in order to assess the legal feasibility of the inclusion of this parameter for the calculation of compensation for immaterial damages. In conclusion, it is stated the abstract punishment compatibility factor with the national law, without, however, entering the examination of such a criterion of justice, moreover, argued that the imposition of a penalty imbued with repressive character requires previous legal imposition, which does not exist in Brazil, which is why, contrary to the majority doctrine and jurisprudence, the punitive element in compensation for moral damages is illegal. Thus, starting from this obstacle, various criteria commonly adopted for the quantification of the penalty in this case are examined, filtering the reparatory perspective to identify those who may or may not be managed. It is relevant to note that, as a methodology, markedly expository form is adopted, based on research literature and jurisprudence imprint, whose ultimate goal consists in verifying the logical congruence between the current doctrine, normative status and the jurisprudential answers for the damages liquidation nowadays.