A concretização dos direitos fundamentais de posse, propriedade e moradia por meio da desapropriação judicial privada indireta

Abstract

The thesis aims to investigate whether judicial recognition of indirect private expropriation, caused by the affectation of property to the relevant social and economic interest, is possible due to the consolidation of a factual situation that realizes the fundamental rights of tenure, property and housing. The issue is examined within the line of research Democracy, Citizenship and Fundamental Rights, aimed at the recognition and realization of fundamental rights related to human dignity and the existential minimum. The thesis seeks to justify, through the recognition of the fundamental rights to tenure and ownership, as well as the understanding of the right to housing in its double dimension, the possibility of consummating the consecration of private property to the social interest, having as a consequence the recognition Indirect private expropriation, including, to justify the responsibility of the Public Power for the payment of fair compensation. In order to reach the described objective, the thesis seeks to prove that the social interest that causes private expropriation can be judicially recognized from the Federal Constitution, by applying the maximum of proportionality and weighting technique. The thesis also identifies factual and legal circumstances that have already been considered sufficient for the prevalence of the fundamental rights of tenure, property and housing, over property, especially in the face of the exercise of possession qualified by the socio-environmental function and the position of the Public Power in Relation to conflicts involving such rights. By means of the deductive method, premises and criteria are established which allow to conclude that, as with indirect public expropriation and private judicial expropriation, judicial recognition of the phenomenon of affectation that leads to the indirect private expropriation resulting from the collision Between the fundamental rights and principles of tenure, property, housing, socio-environmental function and human dignity.