O dano moral na perspectiva do STJ: análise dos critérios determinantes de sua ocorrência nas decisões da 2ª seção no ano de 2009

Abstract

All attitudes of any man are pegged to a consequence, a consideration. Responsibility is intrinsically linked to the dictates of social life. The duty to repair the injury caused to others is inherent humanity, as rules of civility. However, this study focuses on the legal responsibility, in another words, the consideration arising from violations or legal obligations. The civil liability exists since the times of the code of Hammurabi. And over time the notions about the theme were evolving. Previously, the subjective liability based on fault, was the major rule; today, the watchword is the objective responsibility, which the activities of risk don´t need any evidence of guilt. Similarly, the concept of moral damages showsitself flexible, fluid according to changing in space and time, after all it is directly linked to the values of social justice and dignity humanal. Therefore, the lack of a precise concept about the moral damage, caused by abstraction of the issue or by the constant changes arising from tecnological innovations and changes on the relationships, entail the lack of precise criteria to define and mesure the damage. In search of solutions to doctrine and jurisprudence reached numerous concepts and criteria on the theme. As a result, in practice, the judges, the only ones competent to arbitrate on the topic, being free to qualify the moral damage, have adopted the most diverse criteria. The lawsuits about moral damages eventually could be compared to a lottery ticket. In the end, this dissertation applies itself to analyse the major criteria used by the Supreme Court on this subject, the Superior Tribunal de Justiça, under the focus of the judgements of the 2nd Section during the year of 2009.