Dimensão funcional da indenização: análise acerca da possibilidade de aplicação da função punitiva do dano moral no sistema brasileiro de responsabilidade civil

Abstract

he purpose of this study is to verify whether there is scope for punitive damages in our legal system and if, through this possibility, we would not have a misrepresentation of the civil liability function in the Brazil, which has an eminently compensatory nature (article 944 of the Civil Code of 2002). For that, a national and international bibliographical analysis of the subject was made. In this sense, it is undoubted that the law has to accompany social phenomena. And the methodology of civil-constitutional law has consolidated several principles in our legal system, such as the principle of the dignity of the human person, which today is recognized as one of the foundations of the republic and guides the then inserted general clause of protection of the human person, established in art. 1 of the Federal Constitution of 1988. Even through this methodology, what we call horizontal efficacy was conferred on the constitution, so that all other norms of the legal order must have it as a parameter. This change in the legal system had several implications in the most diverse areas of law, however, with regard to civil liability, there was a total change of focus, since the concern was no longer in finding the culprit of the damage, and passed to be the full compensation of the victim or offended. Another implication in the area of civil liability was the emergence of the possibility of compensation for moral damages.