Cláusulas abusivas nos contratos bancários: o papel fiscalizador do Banco Central do Brasil (BACEN) junto as instituições financeiras

Abstract

The purpose of this paper is to demonstrate the unfair terms that permeate bank contracts, encompassing the protection derived from the Consumer Protection Code and the Civil Code. Through the outline of the evolution of society, which originated the need for the elaboration of the referred code, the contractual modality that permeates the consumerist relations and also the guiding principles, those that direct an equitable act at the moment of hiring in order to avoid an excessive burden on the consumer, which is considered to be over-sufficient in consumer affairs. In the general plan, we will discuss the question of Central Bank (BACEN) supervision on bank contracts with consumers by financial institutions authorized to operate in Brazil. Specifically, we will analyze whether BACEN, already crowded by numerous attributions, has the ability to effectively watch over the bank consumer, protecting him from abuses commonly present in bank contracts. We will try to answer some questions throughout the work, among them: By law may BACEN supervise contracts with financial institutions? In the current situation, should bank contracts be subject to more effective state control? Would it be healthy for the banking consumer for bank contracts to be subject to prior control even before they were signed? Using the doctrinal teachings, as well as the relevant jurisprudence to the issues demonstrated, in short, using the bibliographic research to weave the contours appropriate to the performance of financial institutions, with respect to their client / consumer, we will argue that a more incisive action is required from the State to curb the cunning of financial institutions tending to indulge in a manner contrary to the legal system. We will use in this study a qualitative approach and the hypothetical-descriptive method, showing the relevance of the theme, as it conceptualizes the banking contract as encompassed by the Consumer Protection Code, and therefore the abusive conditions that cause onerousness should be removed from it, because it is excessive for the consumer.