A fixação do dano moral como parte integrante da justa indenização no contexto da desapropriação de assentamentos irregulares

Abstract

What’s intended with the present study is to analyse de possibility and the need of the determination of and indemnity for moral damage in cases of expropriation procedures that take place irregular urban settlements. Although an previous and fair indemnity is established by the law as a condition for the expropriation, the affective and psycho-social implications in the individuals, with the loss of their place of living, especially in the context of the “favelas”, are commonly disregarded when it comes to deciding the indemnity. Therefore, the work began with a study of the concepts of moral damage and expropriation that exist in the legislation, and also of the conceptual amplitude and the criteria of the “fair indemnity” that’s brought by the Federal Constitution. After the the conceptual analysis and of these normative precepts, the study analysed the possibility and the need of na insertion of the moral damage as indemnity in expropriations of excluded communities, justifying it with the anylisis of sociological aspects that are inherent to this kind of social group, aspects that come from the psycho-spatial dimensions that constitute the inherent affectivity in the relation individiualcomunity. The method used in this study was the theorical-bibliographic, involving the reading of books, juridical articles, jurisprudences, legal instruments and other undergraduate thesis. Finally, it was concluded, with the bibliographic search, that it is not only possible but, in certain cases, necessary, to fix a reparation for moral damage throught the indemnity, because of the suffering that is felt by the people that inhabit the “favelas” when they lose their homes due to an expropriation procedure.