Aspectos da função social da posse no direito brasileiro

Abstract

The possessory phenomenon and the very concept of propriety possession are subjects that motivates numerous debates on the academic field. The comprehension of the issue has difficulties caused by the different views about the legal essence of possession and its historical traits. To be able to do the present research, with the special emphasis on the concept of possession´s social function, the thesis will begin with the analysis of Roman law to the modern theories of Savigny and Ihering and also to the sociological theories defended by Raymund Sailelles, Silvio Perozzi, and Antônio Hernandez Gil. We shall then consider the Brazilian law, in order to comprehend the concept of possession adopted by the Civil Code enacted in 1916 and its consequences on the property and possession regulation. We assessed the Brazilian law prior to the Constitution of 1988 in order to show the many ideological changes that were gradually implemented with the enactment of the present Constitution. We studied the advent of the constitutional appreciation of the human´s dignity concept on the core of the Brazilian legal system and the consequential necessity of a systematic interpretation of the law, in order to appreciate the extent of the property and possession´s social function. In the end, we shall analyze the present Civil Code enacted in 2002 and its main principles and the enrichment of property and possession´s social function, considering the concept of possession in the Civil Code. The research focused on the shorter prescription and its relation with the qualified possession, as well as the analysis of judicial expropriation based on qualified possession and the institutes of adverse possession in order to satisfy social requirements