Tutela reparatória social

• Ano de defesa: 2019
• Autor(a) principal: Andrade, Marcio Amazonas Cabral de
• Orientador(a): Cordeiro, Nefi
• Tipo de documento: Dissertação
• Tipo de acesso: Acesso aberto
• Idioma: por
• Instituição de defesa: Universidade Católica de Brasília
• Programa de Pós-Graduação: Programa Stricto Sensu em Direito
• Departamento: Escola de Humanidades, Negócios e Direito
• País: Brasil
• Palavras-chave em Português: Tutela coletiva; Tutela reparatória social; Direitos difusos e coletivos; Ministério Público; Destinações diretas; Fundos de recomposição; Fundo de Defesa dos Direitos Difusos - FDD; Fundo de Amparo ao Trabalhador - FAT
• Palavras-chave em Inglês: Social reparatory tutelage; Collective guardianship; Public Ministry; Recomposition funds; Fluid recovery; Diffuse Rights Defense Fund; Worker Support Fund; Diffuse and collective rights; Direct destinations; Class actions
• Área do conhecimento CNPq: CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO
• Link de acesso: https://bdtd.ucb.br:8443/jspui/handle/tede/3044

fter more than three decades of consecration of collective rights by our legal system, it is still possible to identify some difficulty that a collective procedural process presents for the most important items of its institutes. This is because collective rights are addressed to the whole community, so that the social damage caused to the environment, the working world, the historical heritage or other diffuse and collective interests must be repaired in favor of society, abstractly considered. Society, in turn, is not endowed with its own juridical personality, being a plexus of rights, interests and duties common to all individuals. For this reason, the reparation to society for the damage caused should be made through the recomposition funds. For such funds, the proceeds of the indemnities in public civil actions would be destined, as well as the collective moral damages agreed upon in terms of conduct adjustment and the other revenues that were foreseen. Such resources, once integrated into the fund, would be reversed, as provided for in art. 13 of the Brazilian Public Civil Action Law, to the reconstitution of the injured property. In the impossibility of returning to the existing situation prior to the damage, such values would have the purpose of repairing or even compensating the society for the injury caused to it. At the federal level, the recovery of collective damages was the responsibility of the Fund for the Defense of Diffuse Rights - FDD, which although instituted soon after the Public Civil Action Law (Law No. 7.347 / 85), is currently regulated by Decree 1.306/94 and by Law No. 9,008/95.However, after more than thirty years of the existence of a specific federal damage recovery fund, the absence of its own account and the consequent allocation of all FDD revenue to the National Treasury subject its resources to contingency fixed in the Fiscal Responsibility Law (Law No. 101 / 00), preventing its goal of promoting the reconstitution of the injured assets. The social reach of the FDD, during this period, was minimal - or even almost null, in some years -, failing to promote the reconstitution of the injured assets to society, as provided for in the Public Civil Action Law. Faced with this situation, the collective procedural actors, especially the Public Prosecution Service and the Judiciary, sought alternative solutions to promote social reparation protection effectively, and thus no longer using existing recomposition funds. The objective of the present study is, after analyzing the crisis of effectiveness of the recomposition funds created by Law No. 7347/85, to evaluate the alternative methods of reversal of assets and values, by the judiciary, the public prosecutor and other collective procedural legitimated, to the society, as a way of complying with the recomposition of the injuries caused to the social fabric.