A inconstitucionalidade do artigo 223-G, da CLT, à luz dos princípios da igualdade e da reparação integral do dano: uma análise frente ao julgamento das ADls 6.050, 6.069 e 6.082 /

Abstract

Tort liability, in its doctrinal and jurisprudential construction, forms the foundation of judicial action aimed at protecting rights. Through the analysis of the emergence of the institute in the Brazilian legal system, finding its source in Civil Law, this paper examines its evolution to support personality rights, recognizing the compensability of non-pecuniary damages, traversing its positivization by the 1988 Constitution, and its incorporation into Labor Law. Utilizing a study of the evolutionary process of doctrinal thought and the history of relevant judicial decisions on the subject, through bibliographic and jurisprudential review, the objective is to point out the unconstitutional bias of the fixing, based on the worker's remuneration level, of non-pecuniary damages contained in article 223-G of the Consolidation of Labor Laws, introduced by Law 13.467/2017 (Labor Reform), due to its violation of constitutional principles of equality, proportionality, full compensation for damages, and the judge's reasoned free conviction. Thus, in light of the judgment of Direct Actions of Unconstitutionality 6.050, 6.069, and 6.082 by the Federal Supreme Court, which considered the legal provision in question only partially unconstitutional, the argument is constructed that the content of article 223-G, ªº 1, of the Consolidation of Labor Laws, reveals its total unconstitutionality, and the nullity sanction should be applied to the legal act performed in order to remove it from the Brazilian legal system.