Responsabilidade civil e indenização punitiva: intersecções na teoria do desestímulo
Developed within the Anglo-Saxon legal tradition of the eighteenth century, punitive damages emerged as an autonomous form of private sanction, monetary in nature, seeking to reframe the paradigms of civil liability during the transition from modernity, as an institution oriented toward the reparati...
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| Tipo de recurso: | tesis de maestría |
| Estado: | Versión publicada |
| Fecha de publicación: | 2025 |
| País: | Brasil |
| Institución: | Pontifícia Universidade Católica de São Paulo (PUC-SP) |
| Repositorio: | Repositório Institucional da PUC_SP |
| Idioma: | portugués |
| OAI Identifier: | oai:repositorio.pucsp.br:handle/45031 |
| Acceso en línea: | https://repositorio.pucsp.br/jspui/handle/handle/45031 |
| Access Level: | acceso abierto |
| Palabra clave: | CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO Indenização punitiva Teoria do desestímulo Responsabilidade civil Direito comparado Punitive damages Deterrence theory Civil liability Comparative law |
| Sumario: | Developed within the Anglo-Saxon legal tradition of the eighteenth century, punitive damages emerged as an autonomous form of private sanction, monetary in nature, seeking to reframe the paradigms of civil liability during the transition from modernity, as an institution oriented toward the reparation of harm and the resolution of social conflicts. Based on case law and customary tradition – distinctive features of Common Law – the theory highlights the insufficiency of compensatory and restorative functions in addressing harmful events resulting from bad faith or a high degree of fault, particularly in situations where the unlawful act proves personally or economically advantageous. In examining the circumstances of each case, it is incumbent upon the interpreter, acting as a third-party observer, to examine the agent’s intent and evaluate the subjective element of fault across its different layers and gradations, measuring compensation by the extent of the damage, and the sanction in proportion to the gravity of the conduct. This represents a monetary addition that confers a teleological and functional dimension to civil law, aiming to deter the recurrence of egregious behaviors in social life and to transcend individual interests for the benefit of the collective. This dissertation investigates the historical origins and conceptual development of this form of civil sanction in the Anglo-Saxon context and in civil law countries such as France, Italy, and Argentina, in comparison to principles of unjust enrichment, full reparation, and the prohibition of bis in idem, which guide the study of the subject in Brazil. The research, theoretical in nature and qualitative in approach, adopts explanatory and bibliographical methods based on a careful selection of legislative, doctrinal, and jurisprudential sources, using techniques of comparative law. In addressing the central issue – namely, resolving the apparent dichotomy between reparation of harmful acts and punishment of the agent, thereby revealing their intersectionality – the initial hypothesis is confirmed: exemplary or punitive damages have influenced Brazilian law since colonial times, through the reception of deterrence theory in various areas of private life. Although the theoretical framework has been unequivocally incorporated into private law, its application remains limited to express legal provision, given the exhaustive and restrictively interpreted nature of such remedies. Nevertheless, the prohibition of indiscriminate use does not exclude analogical interpretation in exceptional cases that meet the criteria of necessity, utility, and proportionality, under the protection of fundamental rights and guarantees. Finally, the Brazilian legislator appears to be moving toward the broader introduction of this instrument within the framework of personality rights protection, as reflected in Article 944-A of Bill No. 4/2025 |
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