Função dissuasória da responsabilidade civil: fundamentos e proposta de aplicação no Direito brasileiro

Abstract

This study aims to demonstrate that the legal institute of Deterrence should be included among Tort Law functions. In this Thesis the Aristotelian-Thomist conception of justice was adopted as its theoretical framework with the intent of proposing that, alongside corrective justice, Tort Law should incorporate the concepts of distributive justice and social justice. Pursuant articles 170 and 193 of the Brazilian Constitution, social justice guides Tort Law in adopting the principles of human dignity and solidarity as it fundamental ideas, which, consequently, leads it to fulfill a dissuasive function. Such a function, it is argued, is implicit in article 944, sole paragraph, of the Brazilian Civil Code, when determining that the concept of equity should be applied in mitigating the compensation when there is an excessive disproportion between the severity of the offender’s fault and the damages that are due. Now, influenced by the concept of social justice and the principles of human dignity and solidarity, equity can also guide the judge to apply the so-called punitive damages when certain circumstances arise. These are the following circumstances in which the application of deterrence is justified: prior knowledge by the author of the liable offense of facts that would allow him to avoid or minimize the damage; the repeated practice of harmful conducts; and making a profit from abusive economic activities. Bibliographical references and legal precedents were used as tools in this research.