The legal nature delimitation analysis of the institute regulated in §§ 4º and 5º of art. 1.228 of the Civil Code

Abstract

The scope of the Institute, expressed in § § 4 and 5 of art. 1,228 of the Civil Code of 2002, is a widely discussed issue between the doctrinators and applicators of law. This discussion revolves around its exegesis, applicability and, mainly, regarding the determination of its legal nature. The objective of this research is to contribute to the advancement of discussions aimed at delimiting the legal identity of this institute. It presents as the main hypothesis the impossibility of its framing in traditional figures of deprivation and loss of property. The methodological path will undergo the analysis of devices belonging to the Civil code, Laws n ° 10.257/2001, n ° 13.465/2017, and Constitution of the Republic of 1988, as well as Doctrinarian and jurisprudential contents, thus seeking to identify and analyse The fundamental points of each positioning, and finally presenting a critique of the option of the Law n ° 13.465/2017 that declined by the legal nature of judicial disappropriation.