A eficácia jurídica e social do direito fundamental de propriedade: uma análise a partir do viés do módulo rural

Abstract

The Brazilian real estate registry system exists to regularize ownership. But the Land Statute, Law 4.504 / 64, prohibits the minimum fractioning of rural property below the “rural module”, under penalty of criminal, civil and criminal liability of the registrars. Such a prohibition against real estate registration of an area smaller than the rural module has consequences that hinder not only the right to property, but also hamper access to the National Rural Credit System. In addition, it offends promotes legal and social inefficiency in relation to small agrarian property and inhibits the social function of rural property. For this reason, this study aims to discuss whether the Land Statute - Law No. 4.504 / 1964 -, as it provides for the “rural module” institute, perpetuates the historical difficulty of access to a registration system by the small rural producer that guarantees it , with legal and social effectiveness, the fundamental right of property, shaped by the social function, foreseen in the Federal Constitution of 1988. For this purpose, the study is guided by Eric J. Hobsbawm's historical-dialectical analysis, at the point where it reports the historical transformations that occurred in the scenario of rural properties and agriculture after the French and Industrial Revolutions, as well as that of Caio Prado Jr, alluding to the Brazilian scene. In addition, it welcomes some approaches by the anthropogeographer Friedrich Ratzel; political scientist Luiz Carlos Bresser-Pereira and constitutionalists Ingo W. Sarlet, José Afonso da Silva and Luiz Roberto Barroso. In addition, it addresses the essential rules dealing with rural property, with emphasis on Law No. 4.504 / 1964. In effect, this work traces a world and Brazilian historical panorama of the acquisition of rural property in Brazil, respectively taking Eric's doctrines as parameters. J. Hobsbawm and Caio Prado Jr. It also presents the treatment given to the so-called rural module under Brazilian notary and registration legislation. It also analyzes whether the Land Statute, conceived in the historical context of the beginning of the twentieth century, but edited in 1964, compromises the production of legal and social effectiveness in relation to the property rights of small rural producers, in the light of the Federal Constitution of 1988. It also shows some negative externalities arising from the restrictive perspective on the rural module - both from the perspective of food security and from rural credit, as well as the disorganization of urban and rural space. Such negative externalities impede the effective access of the small rural producer to the registration folio, as well as generating social damage, since such properties are kept illegal. It is evident that the positivist legal provisions are out of step with the contemporary world, in which there are studies of advanced technologies, typical of the virtual world, which may give new meaning to the current concept of soil delimitation and productivity.