A exceptio dominii no juízo possessório
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Data
2019-05-29
Autores
Neves, Guilherme Valli de Moraes
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Universidade Federal do Espírito Santo
Resumo
This study analyzes the cognitive limitation in typical writs of possession regarding the abstract and generic exclusion of the exceptio dominii, that is, the impossibility of discussion in the injunction procedure regarding other rights of ownership effectiveness on the thing (jus possidendi). Traditionally, the understanding is that in writs of possession of new force, only the jus possessionis (the possession itself) can be discussed. In this regard, the research focused on the option made by the Brazilian legislature for the treatment of the possessory phenomenon and the way in which the judicial mechanisms for its protection are put, more specifically the writs of possession. In order to do so, it was necessary to approach the possession as an autonomous right guarenteed by the law Worth of judicial protection, and treated the institute from the main legal theories that sought to explain and conceptualize it, namely: subjective theory, objective theory and social theories. After verifying the legal treatement of that kind of exception, the arguments found in legal literature to justify its prohibition, and taking in consideration the elements tha justify the protection of possession itself, the research revealed that the current understanding on the subject is not the better in the context of contemporary civil proceduralism. It has been revealed that the assumptions used - such as the need to protect the possesion in an effective and autonomous way and safeguarding social peace - are true, but do not lead to adequate and desired operability in the legal sphere regarding the existing procedure. This conclusion was reached when we analyzed the effectiveness of possession writs under the consideration of other fundamental values of the judicial procedure, especially of its reasonable duration, which drove us towards a new proposal to understand the domain exception within the possessory actions, making it admissible in the second stage of the procedure, since the article number 558 of the Code of Civil Procedure determines the transmutation of the special possessory procedure to the common procedure in which cognition may be extended. At the end, it finds that this proposal depends only on a new hermeneutics about the institutes, which is perfectly compatible with the current legislation and with the various theories and perceptions of the possessory phenomenon, simply by neglecting some overly formalist preconceptions that brings no benefit for the operability of the legal categories and the satisfaction of possessory conflicts sub judice.
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Palavras-chave
Defesa da posse , Ações possessórias , Exceção de domínio , Razoável duração do processo , Possession protection , Writs of possession , Ownershio exception , Reasonable length of the procedure , Effectiveness