A propriedade aparente no Código civil de 2002

Expõe considerações sobre a propriedade, conceituando-a enquanto um bem. Discorre acerca da propriedade aparente e comenta quatro aplicações da aparência no direito de propriedade. Trata da proteção da aparência como um dos princípios básicos dos direitos reais

Aplicação no brasil da convenção sobre os direitos da pessoa com deficiência

The International Convention on the Rights of Persons with Disabilities replaces the individual, subjective and medical paradigm of the person with mental suffering under the bias of segregation and neutralization of the factual situations with a social model inclusive of human rights, of the promotion of dignity that results in a transcendent turn in the condition of the person with disability, in two manners: a) ensuring access to fundamental rights (housing, health, education); b) reinforcing the private autonomy of the person with disability - even when under a curatorship - by creating and reformulating proportional and flexible legal models that are capable of preserving the space of self care of the subject of such rights, to the extent possible. There is a social context that requires adjustment so that all human beings may actively participate in community life and remain in the center of the decisions that affect them. Legal and sanitary classifications can no longer be based solely on mental health precedents or diagnosis. This new paradigm has an expansive force that spreads into other sectors, requiring a reconfiguration of the limits of the ability to act, the invalidity of business transactions, and the protection of the person and their equity. Incapacity will be a residual, exceptional, and restrictive response used only when the less encumber some alternative of restriction of capacity is inappropriate given the person’s total impossibility of interacting with its environment and expressing their will, and provided that the support system set as initial help for the exercise of capacity is lackin

A GUARDA DE FATO DE IDOSOS

Na célebre obra de Balzac, a Comédia Humana, encontra-se o romance Père Goriot. É a história de um próspero empresário que doou todo o seu patrimônio a duas filhas, confiando receber delas carinho e apoio. Todavia, elas se casam com dois nobres e abandonam o pai. Com o passar do tempo, ele vai decaindo, chegando à extrema miséria. Rastignac, um jovem que vive na mesma pensão que Goriot, procura se relacionar com as filhas deste, transmitindo-lhes reiterados apelos do pai para que o visitem, até o momento da iminência de sua morte. Nem assim elas o visitam, sequer comparecem ao enterro. Enviam apenas as suas carruagens vazias para acompanhar o séquito.

O princípio da boa-fé

Analisa o instituto da boa-fé fazendo um rápido histórico apoiado nos modelos romano, francês e alemão. Em seguida, examina a boa-fé como cláusula geral dos contratos, a relação com o príncipio da dignidade humana, e como modelo no novo Código civil

A transexualidade no Direito Privado

The fundamental right of transsexuals to be socially treated according to their gender identity originates from a wide array of civilizing conquests, which began by the recognition of dignity as an intrinsic value of every human being; they have passed through dignity such as the autonomy of every individual, having arrived at the constitutional duty of the democratic state to protect minorities. Because of this multi-centric point of view, the surgical act acquires a new meaning. Instead of clinical prerequisite for changing one?s civil registry, it has been converted into a phase of a long process of conforming one?s sex to one?s gender, progressively revealed in gestures, clothing and hormone treatment and in the web of affective and social relationships constructed by the person in his/her quest for a good life. Following this line of argumentation, the documents will be faithful to one?s human condition, and changing the first name is justified in a prior moment to that when the procedure of physical adequacy materializes in the hands of the physicians. The right to identity passes through the argument of chromosome immutability or the presence of certain genitals, which is the equivalent of confining gender in its morphological element

Coronavirus cases

The author proposes that, in the light of the COVID-19 pandemic, it is necessary to reformulate the notions of liability for medical professionals due to the extraordinary circumstances and risks they are facing during the pandemic. This requires limiting their liability in coronavirus cases, and allowing them to perform certain practices and recommend certain treatments that may not be on the usual protocols. Furthermore, he suggests that it is necessary to reconsider the concept of guilt for medical professionals. However, the proposal does not support the elimination of liability in all cases; for example, in the cases of discrimination or extreme negligence.El autor propone que, en las condiciones de la pandemia del COVID-19, es necesario replantear los supuestos de responsabilidad de los profesionales médicos debido a las circunstancias extraordinarias y los riesgos que asumen durante dicha pandemia. Esto implica limitar su responsabilidad en los casos de pacientes con esta enfermedad y permitirles realizar ciertas prácticas o tratamientos fuera de los protocolos convencionales. Además, propone que es necesario replantear el concepto de culpa para los profesionales médicos. Sin embargo, la propuesta no avala la eliminación de responsabilidad en todos los ámbitos (por ejemplo, en el caso de las prácticas discriminatorias o extremadamente negligentes)

O direito como experiência. Dos ?coronation cases? aos ?coronavírus cases?

The objective of the article is to demonstrate how, over almost two centuries, English law has created a set of precedents that help us understand how the courts will possibly decide cases related to the COVID-19 pandemi

A união estável no Direito privado brasileiro

From the 3rd paragraph of art. 226 of the Federal Constitution of 1988, it is possible to visualize the ?União Estável? (cohabitation), also called common-law marriage, as a fact existing between two people, of different sexes and free to marry, living together, as if married were characterizing a family entity. The lawmaker refrained from conceptualizing rigidly the cohabitation, leaving to the judge - in each concrete case - the task of analyzing it and recognizing it or not. Therefore, it is a factual situation, establishing an affective bond between a couple, intending to live as if they were married. Cohabitants is the expression consecrated in the Civil Code to designate the subject of the cohabitation, eliminating the prejudice that the word ?concubinato? brought with it. the stable union is subject to some essential elements: (i) gender diversity; (ii) stability; (iii) publicity; (iv) continuity; (v) absence of marital impediments. These five elements need to be connected to a main element, which is the spirit of constituting family (coexistence more uxorio). Cohabitation expands its consequences in different fields, projecting itself in the patrimonial relations, of economic nature, and also in the personal relations, domiciled in the internal scope of the relation maintained by the couple and very much resemble the effects of the marriage. In spite of the distinctions with marriage, not only is it possible to convert a cohabitation into a marriage, but also to consider the possibility of characterizing homosexual unions as cohabitations for legal effects

Responsabilidade civil na área médica

Medicine advances in a surprising way. Biolaw is affirmed at the confluence between law, medicine and ethics, and health is established as a fundamental right, as a projection of the principle of the dignity of the human person. Civil liability, of an originally pecuniary nature, individually and exclusively reparatory, starts to deal with existential goods, including metaindividual dimensions, prioritizing an ex ante prevention function, in the protection of the human personality. In the field of medical civil liability, the duty to protect and promote the best interests of the patient updates the discussion about the traditional precepts of the obligation to compensate: the renewal of the concept of unlawfulness; the resizing of the notion of guilt; the flexiblility of causality; the new limits of the damages and the very expansion of the objective imputation of indemnity, in the restoration of obligations of means and of result. And beyond the classic territory of private law, there is also a discussion about the aspects related to consumption by the masification of contractual relations involving hospitals, health plans and vulnerable patients, demanding jurisprudential and doctrinal constructions suitable for the optimal protection of the human person

A responsabilidade civil dos menores no direito brasileiro.

The Civil Code of 2002 made substantial changes in the system of extracontractual liability of the minors. There is a provision that allows their personal liability for damage caused by them. However, this liability is subsidiary and mitigated. The legislator set up this framework in order to conciliate human dignity and the protection of vulnerable people with the principle of full reparation. The conciliation is given by the leakage of extremes that only guaranteed dignity to the minors (if the outcome was the refusal of any compensation) or the victims (if the indemnity was total and strongly affects the assets of the minors). This is one of the innovations of the civil code that shows a differentiated approach to the purpose of civil liability