A função punitivo-pedagógica da responsabilidade civil: uma análise econômica do instituto e sua (in)aplicabilidade pelo direito brasileiro

Abstract

This study analyzed, through the hypothetical-deductive method and using the economic analysis of the law, the necessity, consequences and possible benefits of the real application of the pedagogical function of civil reparation in Brazil, as punitive indemnity separated to compensation for the damages suffered, or, as it has been applied, embedded in the value arbitrated as indemnity for moral damages, aiming to find practical solutions to the social problems that arise from the logic of profit derived from the illicit, adopted by many companies in the market. The study used the hypothetical-deductive method to identify the problem of the inappropriateness of only reparatory civil liability in relation to the risk society, to verify the applicability of the punitive function of the institute in Brazil, for the purpose of effecting the principle of prevention, overcoming the limitations of the paradigm of integral reparation, using, for the process of falsification, the main doctrinal critiques about the punitive function. The work allowed a new legal interpretation of civil liability, adapting it to the needs of contemporary society, as well as highlighting the possibility of overcoming the limitations arising from the paradigm of the integral reparation principle, in order to recover the other functions of civil liability, in order to prevent harm and repeated violations of prescriptive standards of behavior. It was understood that the punitive function of civil liability is compatible with the constitutionalisation of civil law and indispensable for the fulfillment of its preventive function and for the attainment of social welfare, and above all that the application of punishment of the conduct of the offender, when proven to be guilty of grave or fraud, is compatible with the logic of the victim's valorization and the expansion of the refund.